James, N --- "Embedding graduate attributes within subjects: critical thinking" [2012] LegEdDig 7; (2012) 20(1) Legal Education Digest 22

• Embedding graduate attributes within subjects: critical thinking

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Embedding graduate attributes within subjects: critical thinking

N James

S Kift et al, Excellence and Innovation in Legal Education, LexisNexis, 2011, Chapter 3, pp 69-98.

The ability to engage in critical thinking is frequently identified as a desirable attribute for law school graduates.

In fact, critical thinking is usually something that all university graduates are expected to be able to do.

Critical thinking is seen as a form of higher order thinking, and is referred to in lists of assessment criteria and standards across a range of disciplines. Many law teachers, however, struggle to express a clear conceptualisation of the precise nature of critical thinking or to explain to their students how critical thinking can be demonstrated, and it is often something left for the students to work out for themselves or is assumed (or fervently hoped) to be something already understood by the students by the time they arrive at law school.

There is in fact an abundance of literature about what ‘critical thinking’ is and how the ability to think critically can be developed. However, relatively little has been written about what it means for law students to think critically and how critical thinking can be taught by law teachers.

If as a part of curriculum planning it has been decided that the students enrolled in a particular subject are to develop a particular graduate attribute, development of the graduate attribute must be an explicit learning objective of the subject, the learning activities undertaken by the students – the lectures, tutorial activities, prescribed readings, and the like – must develop that graduate attribute, and the assessment tasks set for the students must measure the extent to which the students have developed that graduate attribute.

It is important that before attempting to embed a particular graduate attribute in a law subject, law teachers ensure that they have a clear and detailed understanding of the graduate attribute in question. It is also important that they appreciate the importance of developing that particular graduate attribute.

The construction of a conception of a graduate attribute such as critical thinking can begin by contrasting it with what it is not. First of all, critical thinking is not dogmatic thinking. Individuals are engaging in dogmatic thinking when they unquestioningly accept and believe what they read, what they are told or what they already know.

Where dogmatic thinking is dependent thinking in that the student relies upon an external source of authority – the teacher, the speaker, the text – in determining what is believed and accepted, critical thinking is independent thinking in that the student is their own authority. And where dogmatic thinking is obedient thinking, critical thinking is disobedient thinking. When a student thinks critically, they refuse to say ‘yes’ without careful deliberation, despite any pressure put upon them to say ‘yes’ immediately. They do not do as they are told, unless they decide for themselves to do so.

Critical thinking is not unquestioning negativity. A student engaging in critical thinking does not necessarily reject what they are told or what they read. After interpreting, analysing and evaluating the object of critique they may reach the conclusion that they agree with or accept it – although such a conclusion is a tentative one and they are willing to revise their position if further evidence or better information comes to light.

Critical thinking is not baseless criticism. The willingness to read a text in a manner inconsistent with the author’s intentions, to uncover ideological biases within a claim, or to expose injustices within a legal system is combined with knowledge and expertise in order to ensure that the critical thinking is not only destructive criticism but also a constructive, credible and even creative contribution to the relevant dialogue.

Critical thinking, in a general sense, is informed, skilful and reflective judgement. A critical thinker does not immediately accept or reject what they read or what they are told. Rather, they maintain a sceptical conceptual ‘distance’ from the object of their attention and make it an object of critique. They carefully interpret and analyse it in order to ensure that they understand the object; they evaluate it in terms of what they already know, their own experience, or some other explicit criteria; and they reach a carefully considered and justified conclusion about the object.

It is not enough, however, to understand a graduate attribute in a general sense; it must be understood in the context of the discipline of law. With regard to the ability to engage in critical thinking, what is it that students must be able to think critically about, and what are the appropriate criteria against which these objects of critique should be judged?

First, and at the most basic level, law students must be able to think critically about legal claims in terms of doctrinal correctness and legal arguments in terms of persuasiveness and rigour. From their very first subjects in the LLB, law students are called upon to interpret, analyse and evaluate claims contained in textbooks, journal articles, monographs, judgments, and so on about what the law is and what the law should be. They are obliged to interpret, analyse and evaluate legal arguments presented by others as well as their own legal arguments.

It is not enough, however, for law students to be able to think critically about legal claims and arguments. As they progress through the LLB they must also learn to judge legal doctrines and rules in terms of their consistency with (1) legal and political standards such as the rule of law or the doctrine of separation of powers; (2) jurisprudential frameworks such as positivism or natural law theory; (3) critical legal theories such as feminism or Marxism; (4) ideological and theoretical standards such as liberty, justice, rights or utility; (5) frameworks from other disciplines such as economics and sociology; and (6) ethical models and professional codes.

The objective of this type of critical thinking is a deeper, more rigorous and more contextualised understanding of the law and legal practice. After all, law students must learn to be more than mere ‘legal technicians’, they must have the ability to judge and to question the law itself.

Finally, at an advanced or ‘graduation-ready’ level law students must be able to judge the impact of legal decisions and legal actions upon the community in terms of equity of outcome. The law is not a phenomenon that exists in isolation from the rest of reality. The law exists in a social and political context, and legal decisions and legal processes have social and political consequences. Law students therefore need the ability and willingness to ‘reflect on their experience, place it in a social justice context, glimpse the strong relationship between knowledge, culture and power, and recognise the role they play in either unearthing hierarchical and oppressive systems of power or challenging such structures’. This type of critical thinking frequently involves opposition to orthodoxy and tradition, and requires the taking of a controversial stance in disciplinary and social debates. It removes law from its position of privilege within the law school and recognises the potential for law to be a source of injustice and a tool for political oppression. The objective of this type of critical thinking is usually legal and social reform.

Why is it important that law students learn how to be informed, skilful, and reflective critical thinkers?

One reason has already been touched upon: in most subjects, law or otherwise, the ability to engage in and demonstrate critical thinking is associated with an ability to think and learn independently, and is seen as evidence of a deep approach to learning (where the student tends to examine arguments critically, to question the assumptions on which they are based, and to relate them to previous knowledge and understanding) rather than a surface approach to learning (where the student tends to learn by rote and not to question the assumptions which underpin the material or to relate it to context).

Another important reason is that legal practitioners must be able to engage in critical, independent thinking. They must be able to conduct legal research in an effort to identify the answer to a legal question, construct legal arguments to promote the interests of their client, and challenge and rebut legal arguments when they engage in a legal dispute. In doing any of these things, they must be able to identify inaccurate or incorrect statements of law, analyse and evaluate legal arguments, and explain the results of their reasoning to clients and judges. An ability to think critically is an important aspect of an ability to ‘think like a lawyer’.

A third reason is that law school graduates often go on to play important roles as community leaders, social activists and law reformers.

Like many graduate attributes, critical thinking has a skills component, a knowledge component and a dispositional component; it is a way of ‘knowing, acting and being’.

Critical thinking is skilful judgement of legal claims, arguments, rules, doctrines, decision and actions. There are six primary critical skills: interpretation, analysis, evaluation, inference, explanation and reflection. A law student engaging in critical thinking will exercise one, some or even all six of these critical skills in relation to an object of critique.

Interpretation is the ability to identify the surface meaning of the object of critique. It involves accepting the object of critique at face value and endeavouring to comprehend the meaning of each part of the object of critique as well as the meaning of the object of critique as a whole.

Analysis is the ability to go beyond the surface meaning of the object of critique and to identify the hidden elements and structures. It still involves accepting the object of critique in the sense that it is not yet being challenged or questioned, but it also involves seeking out what the object of critique has left unsaid by identifying the organising principles, the underlying premises or assumptions, the vested interests, the privileged and excluded perspectives, the theoretical frameworks, and so on. Whereas interpretation is awareness of the meaning of the information as presented or as intended, analysis leads to awareness of the hidden meaning.

Evaluation is the skill that lies at the heart of critical thinking practice. It is the ability to assess the object of critique in terms of its consistency or inconsistency with a set of explicit standards or criteria such as truth value, doctrinal accuracy, reliability, persuasiveness, or consistency with some theoretical or ideological standard. It includes weighing up the arguments for and against a position, questioning a claim in light of the evidence or the critical thinker’s own knowledge, or challenging the fairness of a decision. Whereas interpretation and analysis involve understanding the object of critique, evaluation involves judging the object of critique in terms of its compliance or otherwise with a set of standards.

Inference is the ability to come to a reasonable and justifiable conclusion about the object of critique based on known facts, reliable evidence or the results of the exercise of interpretation, analysis and evaluation skills. When a person interprets, analyses and evaluates they work with existing information. When they infer, they extrapolate from existing information to create new information in the form of a conclusion.

The skill of explanation is relatively straightforward: it is the ability to clearly and convincingly communicate the results of the exercise of the other critical skills to others.

The final skill is reflection, otherwise known as self-regulation or metacognition. Reflection is the application by the student of their critical skills to their own thinking. The student challenges their interpretation, analysis and evaluation of the object of critique, and questions their own conclusions. Even when satisfied as to the correctness or validity of their conclusions they remain open to the possibility that the conclusion will need to be revised if further information comes to light.

If critical thinking is being taught progressively across the LLB program, one might choose to emphasise interpretation and analysis at the introductory level, evaluation and inference at the intermediate level, reflection at the graduation-ready level, and explanation at all levels. The six skills are not necessarily hierarchical in the sense that, say, evaluation is ‘better’ than analysis, and it is not necessarily the case that, say, refection is more difficult or complicated than interpretation. However, it is usually sensible for the critical thinker to exercise their interpretation and analysis skills in order to ensure that they understand the object of critique thoroughly before they exercise their evaluation and inference skills in order to judge and reach a conclusion about the object of critique. Students should learn to understand before they learn to criticise, and they should learn to think before they learn to think about their thinking.

The ability to exercise critical skills is what separates disciplined and rigorous judgement from undisciplined and unconvincing criticism. Alone, however, this ability will not make a law student a critical thinker. There are certain things about which law students must be informed. In other words, law students also need critical knowledge.

If a law teacher wants their students to be able to evaluate legal arguments properly then they may need to teach them explicitly about the rules of logic. If they want their students to be able to evaluate rules and doctrines in light of a range of legal theories from the mainstream to the more radical they may need to explain to their students how those legal theories relate to the subject they are teaching. And if they want their students to be able to evaluate legal actions and political decisions in terms of social equity and their impact upon the community then they may need to expose their students to socio-legal scholarship and teach them about social justice and law reform.

With an awareness of critical knowledge and an ability to exercise critical skills, law students are well on their way to becoming critical thinkers. But without the right attitude or temperament, the students are unlikely to actually practice critical thinking despite their ability to do so.

A critical disposition – sometimes referred to as ‘critical spirit’ or ‘critical consciousness’ – is the attitude and the willingness required in order to engage in critical thinking. A critical disposition is an essential component of critical thinking, although alone it is certainly not sufficient: a student with a critical disposition but without critical skills or knowledge is simply confrontational, and lacks the information and abilities to competently and convincingly analyse and evaluate the object of critique.

A critical disposition is characterised by a wide of range of personality traits including inquisitiveness, self-confidence, open-mindedness, flexibility, fair-mindedness, self-honesty, prudence, diligence, and persistence. At an introductory level a critical thinker should at least have the courage to challenge the views of others and to express a contrary opinion. By the time they reach an intermediate level the critical thinker should also have the humility to reflect upon their own opinions and beliefs and to modify their position when appropriate. And at a graduation-ready level, law students must be encouraged to strike the right balance between these two.

Graduate attributes such as critical thinking are frequently referred to in lists of learning objectives, but this tends to be done in a way that is unhelpful for students. A subject outline might state, for example, that one of the objectives of the subject is that students ‘think critically about the law of contract’, or ‘engage in critical reflection about the Australian legal system’, or ‘critically evaluate family law in Australia’, without explaining what is meant by ‘think critically’, ‘critical reflection’ or ‘critically evaluate’.

The learning objectives should instead be worded to make it clear to the students what it is that they are expected to be able to do. There are a number of ways that this can be done. The learning objectives could include a detailed description of the ways in which the students can demonstrate the graduate attribute. In relation to critical thinking, they could include an explanation of the different ‘objects of critique’ about which the students should be able to think critically.

Alternatively, explicit reference could be made to the relevant skills, knowledge and disposition.

Other ways of wording the learning objectives include identifying in more detail each of the key skills the students are expected to be able to exercise, or each of the key dispositional traits the students are expected to develop. In any event it is important that the students be able to read the learning objectives and clearly understand what it is that they will be expected to be able to do by the end of the subject.

Once the learning objectives for a subject have been clearly identified, they should inform all aspects of teaching. Students become understandably frustrated by subject outlines that contain lists of learning objectives of little or no direct relevance to the content of the subject, and learn to ignore those lists as essentially meaningless.

If development of the ability to think critically has been included as one of the learning objectives, the law teacher must ensure that development of that ability is included as part of the learning activities in the subject. They need to: (1) explain and demonstrate what is meant by critical thinking in the lectures; (2) call upon students to demonstrate critical thinking in tutorials, and (3) prescribe readings that explain and/or demonstrate critical thinking in the context of the subject.

If one of the learning objectives is development of the graduate attribute of critical thinking, the law teacher must ensure that (1) the assessment activities measure the ability of the students to engage in critical thinking; and (2) the learning activities prepare the students to complete the assessment activities by requiring them to develop and demonstrate their ability to think critically.

Law students’ ability to exercise critical skills can be assessed by instructing the students to exercise those critical skills in relation to a particular legal claim, argument, rule, doctrine, decision or action, and marking the students’ efforts according to an appropriate set of criteria and standards. This can be done in the context of a research essay, an exam question or an oral presentation.

The assessment of critical disposition is more problematic. It is difficult, if not impossible, to directly assess a student’s courage, honesty, inquisitiveness etc. It is easier and arguably more appropriate to link critical disposition to the students’ exercise of the skill of reflection and to have them, within an assessed journal, a research paper or an essay question on an exam, reflect upon their own critical disposition and its development in the context of the subject.

If a graduate attribute is being developed progressively across the LLB program, the specific objectives, learning activities and assessment activities for a given subject will depend largely upon the level at which the graduate attribute is being taught. At an introductory level, students should be introduced to the graduate attribute and its ‘skills’, ‘knowledge’ and ‘disposition’ components, and the emphasis should be upon development of basic skills, knowledge and traits. When the graduate attribute is being developed at an intermediate level, the students should be reminded about the various components of the graduate attribute, and the emphasis should be upon intermediate skills, knowledge and traits. At a graduation-ready level the students can be assumed to understand the various components of the graduate attribute, and the emphasis should be upon the advanced skills, knowledge and traits.