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THE GOOD LAW TEACHER: THE PROPAGATION OF
PEDAGOGICALISM IN AUSTRALIAN LEGAL EDUCATION
DR NICKOLAS JOHN JAMES∗
I INTRODUCTION
What makes a law teacher a good law teacher? The answer to that question traditionally depended upon one’s preferred approach to the teaching of law. If one favoured a doctrinal approach – privileging legal doctrine by locating it at the core of the legal curriculum and by emphasising its intellectual rigour, academic value and social importance – the good law teacher was the brilliant legal specialist, the scholar with the international reputation and comprehensive knowledge of the subject matter. If one favoured a vocational approach – prioritising the teaching of legal skills and emphasising the importance of employability as an outcome of legal education – the good law teacher was the lecturer who was also a practitioner and who knew how the law ‘really’ worked. If one favoured a liberal approach – endorsing the liberalising of traditional legal education by emphasising individual freedom, social responsibility and informed rationality – the good law teacher was the teacher who inspired a student’s interest in lifelong learning, in becoming a better citizen, and in seeking social justice. If one favoured a critical or feminist approach – undermining the status quo within the law school and within the legal system by exposing and questioning the undisclosed political positions, gender biases, cultural biases and power relations within legal education and within law – the good law teacher was the passionate critic or the charismatic rebel who inspired insubordination and subversion. A new understanding of the good law teacher has emerged within Australian law schools in the last 15 years, which has replaced this variety and inconsistency with stability and certainty, and which has sought to quantify that which was thought to be largely unquantifiable. The good law teacher is now one who teaches in a manner consistent with the ideas and insights developed within orthodox education scholarship, and the quality of law teaching is measured in
∗ (^) BCom LLB (Hons) LLM PhD. Lecturer, T C Beirne School of Law, University of Queensland. This paper is part of a larger project analysing power–knowledge in Australian legal education. I am grateful to the following colleagues for their feedback regarding this project: Dr Helen Stacy at Stanford University; Dr Barbara Hocking and Dr Sally Sheldon at Queensland University of Technology; and Dr Bill McNeill at Griffith University.
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terms of compliance with a range of clearly defined pedagogical criteria. The promotion of this notion of good law teaching is referred to in this paper as ‘pedagogicalism’. Pedagogicalism has successfully influenced discussion about the teaching of law in most Australian law schools. Many law teachers appear to have accepted the idea that good law teaching is about facilitating student learning. Consistent with orthodox education theory, many law teachers claim to have moved away from the traditional approach to teaching involving lectures, tutorials, final examinations and little else, and to have experimented with self-directed learning, flexible delivery, computer-mediated group work and continuous assessment strategies. 1 Most law schools now have teaching and learning policies which require teaching practices to comply with clearly specified pedagogical criteria. This paper seeks to determine how and why the pedagogical notion of good teaching has been propagated so successfully in Australian law schools. In doing so, it does not seek to either prove or disprove pedagogicalism’s claims. Nor does it suggest that law schools and law teachers are either right or wrong to recognise orthodox education theory and its ideas about effective teaching and student learning. It is, rather, an analysis of pedagogicalism as a particular vector of power–knowledge. Michel Foucault coined the term ‘power–knowledge’ to indicate the close relationship between knowledge and power.^2 He insisted that the production and dissemination of knowledge is always an expression of power, and that the expression of power always involves the production and dissemination of knowledge. Discourses designate the conjunction of power and knowledge: it is through discourses that the production of knowledge takes place and through which power is exercised and power relations are maintained.^3 Discourses seek to both inform and influence, to both educate and dominate. Discourses tell subjects about themselves and about the world; they also construct that world and determine who the subjects are. A legal education discourse such as pedagogicalism is both a form of knowledge about the teaching of law and an expression of power seeking to regulate and discipline law teachers, law students and others within a law school. The first part of this paper is an analysis of pedagogical legal education discourse as a form of knowledge. Pedagogicalism, as a body of statements about the teaching of law, is located within certain works of legal education scholarship and law school policies. The emergence of the pedagogical notion of good teaching within the discursive field of legal education was initially the result of efforts by liberal legal scholars and the influence of a large body of orthodox
1 Ralph Simmonds, ‘Growth, Diversity and Accountability’ in John Goldring, Charles Sampford, and Ralph Simmonds (eds), New Foundations in Legal Education (1998) 63. 2 Foucault did not suggest, however, that power and knowledge are the same thing. Many believe that Foucault insisted that ‘power is knowledge’ or that ‘knowledge is power’ but, as Foucault remarked, if they were the same thing it would have been a waste of most of his scholarly life to analyse their relation. See Gavin Kendall and Gary Wickham, Using Foucault’s Methods (1999) 51. 3 Michel Foucault, The Will to Knowledge: The History of Sexuality 1 (1998) 101.
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Orthodox education scholarship also emphasises the distinction between approaches to learning that was recognised by Marton and Saljo. Marton and Saljo created the distinction between ‘surface’ and ‘deep’ approaches to learning. Students who adopt a ‘surface’ approach to learning tend to learn by rote and not to question the assumptions underpinning the material, or to relate it to context. Students who adopt a ‘deep’ approach to learning tend to examine arguments critically, to question the assumptions on which they are based, and to relate them to previous knowledge and understanding.^5 It is the role of the teacher to inculcate in students a ‘deep’ approach to learning. The distinction between ‘surface’ and ‘deep’ approaches to learning is one which has been accepted by a number of Australian legal education scholars. John Goldring, for example, criticised traditional legal education as little more than training to pass final exams, and complained that law students are encouraged to take a superficial approach to learning rather than to understand the subject matter: ‘If law students developed a deep approach to learning, it was in spite of, rather than because of, their education.’ 6 Work by LeBrun, Johnstone, Marchetti and others also refers to the distinction.^7 Australian legal education scholarship has also embraced the orthodox notion of ‘effective teaching’. The Johnstone Report summarised the various aspects of effective teaching which have been promulgated by pedagogical legal education scholarship in recent years. The effective teacher is enthusiastic about sharing a love of the law subject with others; motivates students to feel the need to learn the law subject material; makes the material of the law subject genuinely interesting; shows concern and respect for students, recognising the diversity within the student body; is available to students; makes it clear to students what they are expected to be able to do; provides clear explanations, using a variety of appropriate techniques; focuses on key concepts and students’ misunderstanding of them, rather than on trying to cover a lot of ground; uses a variety of valid
5 Ference Marton and Roger Saljo, ‘On Qualitative Differences in Learning–2: Outcomes as a Function of the Learner’s Conception of the Risk’ (1976) 46 British Journal of Educational Psychology 115. 6 John Goldring, ‘Coping with the Virtual Campus: Some Hints and Opportunities for Legal Education’ in John Goldring, Charles Sampford, and Ralph Simmonds (eds), New Foundations in Legal Education (1998) 87. 7 See, eg, Judy Allen and Paula Baron, ‘Of Caterpillars and Butterflies: The Introduction of Metamorphosis at the UWA Law School’ (2001) 35 The Law Teacher 346; Carol Bond and Marlene LeBrun, ‘Promoting Learning in Law’ (1996) 7 Legal Education Review 1; Tracey Booth, ‘Learning Environments, Economic Rationalism and Criminal Law: Towards Quality Teaching and Learning Outcomes’ (2001) 3 The University of Technology Sydney Law Review 17; Beth Campbell, ‘Professional Legal Education, Deep Learning and Dispute Resolution’ (1997) 15 The Journal of Professional Legal Education 1; Penny Crofts, ‘Crossing the Theory/Practice Divide: Community-Based Problem Solving’ (2001) 3 The University of Technology Sydney Law Review 40; John Goldring, ‘Thinking About First Year Law Teaching’ (1995) 2 Canberra Law Review 137; Marlene LeBrun, ‘Curriculum Planning and Development in Law: Why Is Innovation So Rare?’ (1991) 9 Law in Context 27; Marlene LeBrun and Richard Johnstone, The Quiet (R)Evolution: Improving Student Learning in Law (1994); Elena Marchetti, ‘The Influence of Assessment in a Law Program on the Adoption of a Deep Approach to Learning’ (1997) 15 The Journal of Professional Legal Education 203; Stephen Nathanson, ‘Changing Culture to Teach Problem-Solving Skills’ (1996) 14 The Journal of Professional Legal Education 143; Nicolette Rogers, ‘Improving the Quality of Learning in Law Schools by Improving Student Assessment’ (1993) 4 Legal Education Review 113.
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methods for assessment that focus on the key areas that students need to master; encourages students to engage deeply with the task; avoids forcing students to rote learn or merely reproduce detail, and avoids unnecessary anxiety; enables students to work collaboratively; engages in a dialogue with the learner and seeks evidence of student understanding and misunderstanding; gives timely and high quality feedback on student work; engages with students at their level of understanding; ensures that student workload is appropriate to allow students to explore the main ideas in the law subject; encourages student independence; uses methods that demand student activity, problem solving and cooperative learning; is aware that good learning and teaching are dependent on the context within which learning is to take place; constantly monitors what students are experiencing in their learning situations; and tries to find out about the effects of teaching on student learning, modifying their approach to teaching in the light of the evidence collected. 8 Today, the ‘good teacher’ is one who endeavours to ensure that their teaching is consistent with most or all of these characteristics, and these characteristics inform the criteria by which the teaching performances of many law teachers are now judged.
B The Sources of Pedagogicalism Australian pedagogical texts include those works of legal education scholarship primarily concerned with the description and analysis of teaching and assessment methods. Some of these texts simply describe the authors’ own
8 Richard Johnstone and Sumitra Vignaendra, Learning Outcomes and Curriculum Development in Law: A Report Commissioned by the Australian Universities Teaching Committee (2003) 278–81 (‘The Johnstone Report’).
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resolution,^11 legal research,^12 legal reasoning,^13 legal writing,^14 or legal literacy 15
- can be taught. Other texts focus upon the analysis of a particular aspect of the learning process, such as language barriers,^16 motivation,^17 the use of
11 See, eg, Campbell, above n 7; Jennifer David, ‘Training Issues in Dispute Resolution: Three Perspectives, Part 1: Integrating Alternative Dispute Resolution (ADR) in Law Schools’ (1991) 2 Australian Dispute Resolution Journal 5; J E Effron, ‘Training Issues in Dispute Resolution: Three Perspectives, Part 3: Breaking Adjudication’s Monopoly: Alternatives to Litigation Come to Law School’ (1991) 2 Australian Dispute Resolution Journal 21; Kathy Mack, ‘Integrating Procedure, ADR and Skills: New Teaching and Learning for New Dispute Resolution Processes’ (1998) 9 Legal Education Review 83; Margot Taylor, ‘Teaching Negotiation: Changing the Focus from Strategy to Substance’ (1998) 16 The Journal of Professional Legal Education 23. 12 See, eg, Terry Hutchinson, ‘Taking up the Discourse: Theory or Practice’ (1995) Queensland University of Technology Law Journal 33; Terry Hutchinson and Fiona Martin, ‘Multi-Modal Delivery Approaches in Teaching Postgraduate Legal Research Courses’ (1997) 15 The Journal of Professional Legal Education 137. 13 See, eg, Duncan Bentley, ‘Using Structures to Teach Legal Reasoning’ (1994) 5 Legal Education Review 129; John Wade, ‘Meet MIRAT: Legal Reasoning Fragmented into Learnable Chunks’ (1990-91) 2 Legal Education Review 283. 14 See, eg, Annette Hasche, ‘Teaching Writing in Law: A Model to Improve Student Learning’ (1992) 3 Legal Education Review 267. 15 See, eg, Dean Bell and Penelope Pether, ‘Re/Writing Skills Training in Law Schools: Legal Literacy Revisited’ (1998) 9 Legal Education Review 113; Paul Havemann and Jacquelin Mackinnon, ‘Synergistic Literacies: Fostering Critical and Technological Literacies in Teaching a Legal Research Methods Course’ (2002) 12 Legal Education Review 65; Barbara Kamler and Rod Maclean, ‘“You Can’t Just Go to Court and Move Your Body”: First-Year Students Learn to Write and Speak the Law’ (1997) Law Text Culture 176; Lyndal Taylor et al, ‘Reading Is Critical’ (2001) 3 The University of Technology Sydney Law Review 126. 16 See, eg, Alison Marriott and James O’Connell, ‘A Language Teaching Perspective on Professional Legal Education’ (1995) 13 The Journal of Professional Legal Education 147. 17 See, eg, Paula Baron, ‘Demand and Desire: A Psychoanalytic Contribution to Understanding the Problems of Student Motivation’ (2002) 11 Griffith Law Review 332; Helen Brown, ‘The Cult of Individualism in Law School’ (2000) 25 Alternative Law Journal 279.
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technology,^18 assessment, 19 peer mentoring 20 or thesis supervision. 21 Description and analysis of distance learning, online learning and flexible delivery are also common topics. 22 Many pedagogical texts propose ways in which the process of teaching within the law school might generally be improved; some of these texts
18 See, eg, Maree Chetwin and Cally Edgar, ‘Legal Education in the Technology Revolution: The Evolutionary Nature of Computer-Assisted Learning’ (1999) 10 Legal Education Review 163; Peter Egri, ‘Computer Assisted Learning, Legal Expert Systems and Practical Legal Training’ (1990) 8 The Journal of Professional Legal Education 1; Fokke Fernhout et al, ‘Obligatio: A Client Interviewing Simulation Computer Program’ (1987) 5 The Journal of Professional Legal Education 161; Lee Godden et al, ‘The “Offices” Project at Griffith University Law School and the Use of Video as a Tool for Evaluation’ (1994) 12 Journal of Professional Legal Education 149; Mary Holmes and Judith Maxwell, ‘The Use of Role-Play and Video in Teaching Communication Skills to Law Students’ (1987) 5 The Journal of Professional Legal Education 151; Marlene LeBrun, ‘Learning Interviewing with Video: Creating Multi- Media Packages for Skills Teaching’ (1998) 16 The Journal of Professional Legal Education 187; Marlene LeBrun, ‘Gaming Contract Law: Creating Pleasurable Ways to Learn the Law of Contract’ (2003) 10 Murdoch University Electronic Journal of Law 1; Heather Park and Myles McGregor- Lowndes, ‘A Computer Aided Strategy for Teaching Corporate Law’ (1992) 2 Australian Journal of Corporate Law 128; Sarah Nield, ‘Computer Assisted Learning Coming of Age’ (1997) 15 Journal of Professional Legal Education 31; Deborah Richards and Joanne Stagg-Taylor, ‘Preparing Advocates for the Courtroom of the Future’ (2003) 92 Commonwealth Legal Education 18; Ian Wilson, ‘Computer Assisted Legal Instruction and Continuing Legal Education: A Conspectus’ (1989) 7 The Journal of Professional Legal Education 170. 19 See, eg, Jeffrey Barnes, ‘The Functions of Assessment: A Re-Examination’ (1990-91) 2 Legal Education Review 177; Andrew Finlay, ‘The Construction of Tests and Their Application in Practical Legal Training’ (1993) 11 The Journal of Professional Legal Education 173; John Goldring, ‘Student Assessment and “Quality” in Legal Education’ (1997) 1 Macarthur Law Review 41; Richard Johnstone, ‘Improving Criteria and Feedback in Student Assessment in Law’ (1996) 7 Legal Education Review 267; Marchetti, above n 7; Shirley Rawson and Alan Tyree, ‘Self and Peer Assessment in Legal Education’ (1989) 1 Legal Education Review 135; Rogers, above n 7. 20 See, eg, Frances McGlone, ‘Student Peer Mentors: A Teaching and Learning Strategy Designed to Promote Cooperative Approaches to Learning and the Development of Lifelong Learning Skills’ (1996) Queensland University of Technology Law Journal 201; Ben White, ‘The Student Peer Mentor Program in Its Trial Year: A Mentor’s Perspective’ (1996) Queensland University of Technology Law Journal 221. 21 Desmond Manderson, ‘FAQ: Initial Questions About Thesis Supervision in Law’ (1997) 8 Legal Education Review 121. 22 See, eg, John Goldring, ‘Distance Teaching in Law: Possibilities for Commonwealth Cooperation’ (1990) 2 Legal Education Review 83; John Goldring, ‘Coping with the Virtual Campus: Some Hints and Opportunities for Legal Education’ (1995) 6 Legal Education Review 91; Dan Hunter, ‘Legal Teaching and Learning Over the Web’ (2001) The University Of Technology Sydney Law Review 124; Richard Johnstone and Gordon Joughin, Designing Print Materials for Flexible Teaching and Learning in Law (1997); Lawrence McNamara, ‘Lecturing (and Not Lecturing) Using the Web: Developing a Teaching Strategy for Web-Based Lectures (Flexible Delivery in a First Year Law Subject, Part I)’ (2000) 11 Legal Education Review 149; Lawrence McNamara, ‘Why Teaching Matters and Technology Doesn’t: An Evaluation and Review of Web-Based Lectures (Flexible Delivery in a First Year Law Subject, Part II)’ (2000) 11 Legal Education Review 175; Lyndal Taylor, ‘“You Can Lead a Horse to Water”: Introducing On-Line Education’ (2001) 3 The University of Technology Sydney Law Review 141.
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the University of Wollongong Faculty of Law, students are encouraged to become ‘self-directed learners’.^30
C The Conditions of Possibility Why does pedagogicalism appear to have been propagated so successfully within the discursive field of legal education? This propagation was initially a consequence of the efforts by some legal scholars to encourage an approach to the teaching of law, more liberal than the doctrinal and vocational approaches which had previously dominated Australian legal education. According to liberal ideology, education is more than mere indoctrination or training for employment, and consequently the teaching of law must involve more than the transmission of legal doctrine or the inculcation of legal skills. Rather, legal education must include the study of legal philosophy and law in context, liberal values must infuse legal education practice, and the law student must learn to think rationally and behave responsibly as a practitioner and as a member of a community. The liberal emphasis upon the individuality of the student, together with the liberal willingness to consider insights and perspectives from other academic disciplines, led to an increasing awareness of the existence and availability of the large body of scholarship produced within the discipline of education concerned with the theory and practice of teaching. 31 Liberal legal scholars began to write about, and to describe to each other, the ways in which orthodox education theory might be incorporated into legal teaching practice. The efforts of liberal law teachers, however, were not always successful, and the influence of orthodox education scholarship was initially limited. The pedagogical notion of good teaching was resisted by the conservative majority of Australian legal scholars who had for years refused to allow themselves to be categorised as teachers, and who preferred instead to focus primarily upon their role as researchers and scholars. As Marlene LeBrun notes, ‘[f]ew legal academics describe themselves first and foremost as “teachers”. Perhaps this is because “lecturer” or “professor” carries greater status.’ 32 Most legal scholars preferred to invest less energy in their teaching practice than in their research.
30 University of Wollongong, Faculty of Law Homepage <http://www.uow. edu.au/law/intro.html > at 2 June 2004: ‘The undergraduate law degree courses leading to the LLB and the sequence of subjects in Legal Studies seek to develop the capacity of students to learn on their own. This is consistent with the University’s emphasis on teaching as the creation of an environment which assists learning. Students who study law at Wollongong will learn law, rather than be taught law. This may not always be easy - nor may it be what students expect.’ 31 Law was not the only discipline within the university to be influenced by orthodox education scholarship. Paul Ramsden, above n 4, described how ‘… [t]he ideas of a previously little-known group of academics from Britain and Sweden have become accepted into the discourse of quality in higher education. Powerful people and statutory bodies now use phrases from what used to be a comfortable area of educational research as part of their lingua franca ’: at 4. 32 Bond and LeBrun, above n 7, 31. See also H Stanton, ‘Why Do Academics Avoid Knowledge About Teaching?’ (1987) 11 University Teacher 1; John Mitchell, ‘Current Theories on Expert and Novice Thinking: A Full Faculty Considers the Implications for Legal Education’ (1989) 39 Journal of Legal Education 275.
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Fiona Cownie has observed that in this respect, legal scholars do not appear to behave differently to their colleagues in other disciplines:
Anecdotal evidence rather than pedagogical theory often plays a large part in the construction of lectures and tutorials; lecturers turn to their own experience as undergraduates to guide them in designing lectures; and little thought is given to any but the most basic of the pedagogic aspects of teaching.^33 There was a common perception that the academic reputation of a legal scholar was based primarily upon the quality and extent of their contribution to, and promotion of disciplinary knowledge.^34 Leading legal scholars usually achieved pre-eminence because of their reputation for research and scholarship, and they were not perceived as regarding teaching as a serious intellectual task. Further, teaching was regarded as a private activity; competence as a teacher was not easy to assess, especially in contrast with research. Legal scholars were expected by administrators to teach competently – with ‘competence’ defined in terms of the passing of appropriate numbers of students with a minimum number of complaints – and to direct most of their energies towards research. In recent years, however, the propagation of pedagogicalism appears to have been much more widespread and much more successful. The Johnstone Report concluded that,
it no longer seems that the dominant approach to teaching in Australian law schools is one based on the assumption that teaching is about transmitting knowledge from the lecturer to students, so that student learning simply involves acquiring new knowledge, and is a process separate from teaching. Rather … law teachers are increasingly accepting that teaching is concerned with making it possible for students to learn subject matter, and is a complex process of facilitating changes in student understanding. 35 The recent success of pedagogicalism appears to have been largely contingent upon – and limited to – the consistency of the pedagogical notion of good teaching with the corporatist objectives of efficiency, accountability and marketability. For law school and university decision makers seeking to manage and monitor teaching practices, pedagogicalism and orthodox education theory provide a consistent definition of good teaching and offer a detailed set of criteria by which teaching practices might be judged and compared. University and law school administrators are given a relatively clear and consistent set of benchmarks with which law teachers can be compelled to comply. Administrators have recognised, and become concerned to regulate, the connections between the manner in which a law teacher approaches the teaching of law and the attraction of, and satisfaction experienced by, law students as customers. University teaching and learning policies informed by orthodox education theory are increasingly imposed upon law schools and law teachers. The use and enforcement of these university policies are further encouraged by calls from government and private funding bodies for greater levels of
33 Fiona Cownie, ‘Searching for Theory in Teaching Law’ in Fiona Cownie (ed), The Law School – Global Issues, Local Questions (1999) 44. 34 Ibid 41. 35 Johnstone and Vignaendra, above n 8, 286.
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The propagation of pedagogicalism-as-knowledge has also been facilitated by the increasing expectation amongst many law students that their legal education be of a standard and quality commensurate with the high fees which they are paying. Pedagogical criteria, again, offer students a means by which the ‘quality’ of legal education, the effort which law teachers expend upon their teaching and the extent to which they appear to take their teaching responsibilities seriously can be measured and compared. The expectations of students now drive pedagogical innovation and classroom practices, and these expectations are gauged and measured using questionnaires and surveys drafted using pedagogical criteria. The expectations of law students are particularly influential in the propagation of pedagogicalism: the Johnstone Report noted that some new law schools recognise that ‘the way that we attract students here, and more importantly, the way we keep them, is to emphasise our teaching’. 42 Some schools deliberately seek to employ staff specifically for their teaching ability; ability which is both measured and promoted in terms of compliance with pedagogical criteria.^43 These historical, social and political contingencies – the efforts by liberal legal scholars, the availability of a large body of orthodox education scholarship, the consistency of pedagogicalism with the corporatist ideals of accountability, efficiency and quality, and the rising expectations of law students – have contributed to the emergence and recent success of pedagogicalism within Australian law schools. They are not, however, the only determinants of pedagogicalism’s effectiveness. That effectiveness can also be understood as a consequence of the internal features and characteristics of pedagogicalism as an expression of power.
III PEDAGOGICALISM AS POWER
The notion of power adopted in this paper is a Foucauldian one. The first point to note about Foucault’s notion of power is that it is non-judgemental. The word ‘power’ often has a negative connotation: it is something possessed and used by the powerful at the expense of the powerless, it is used to repress and control, and it distorts truth and knowledge. According to Foucault, however, power is not solely negative; it is also productive. Power produces meaning, it produces subjects and what they do, it produces how subjects see themselves and the world, and it produces resistance to itself. Power leads to dominance and
42 Johnstone and Vignaendra, above n 8, 291. 43 Ibid. Students’ expectations regarding quality of teaching, however, may not be as influential as their expectations regarding employability. According to Vivienne Brand, ‘students show less regard for good teaching than for employment prospects; there is evidence that prospective students continue to favour the established law schools, despite their less impressive performance in reforming their curricula’: see Vivienne Brand, ‘Decline in the Reform of Law Teaching? The Impact of Policy Reforms in Tertiary Education’ (1999) 10 Legal Education Review 109, 124. Brand quoted the authors of the Good Universities Guide as suggesting that ‘law makes a good case study for anyone wanting to be gloomy about prospects for educational reform. Legal academics have difficulty in producing it and prospective students don’t demand it’: Dean Ashenden and Sandra Milligan, ‘Law Still in Demand’, The Australian (Sydney), 27 January 1999, 30.
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hegemony, but power also undermines dominance and hegemony.^44 Legal education texts, including the books and articles written by legal scholars, the papers that they present, law school websites and course descriptions, and even classroom and meeting room dialogues, are all expressions of power seeking to achieve particular objectives. This need not be viewed as a controversial assertion if it is understood that designating something as an expression or as a strategy of power is not a criticism. Power exists and is exercised within the law school but it is not necessarily exercised repressively or unjustly. Power is what keeps the engine of legal education working. The second point to note about the Foucauldian notion of power is that it is non-subjective. A discourse may privilege or favour certain subjects, 45 and those subjects may appear to cooperate willingly in the achievement of the discourse’s objectives, but it is not an exercise of power by those subjects. Subjects are not the initiators of discourse; they are simultaneously the products of discourse and the means by which discourses are propagated. According to Foucault, the notion of a subject who exists prior to language and is the origin of all meaning is an illusion.^46 Pedagogicalism, then, is an exercise of power which favours both good teachers and corporatist administrators, but it is not a deliberate machination by good teachers or corporatist administrators. The following analysis of pedagogicalism-as-power is conducted in four steps. The first step is the identification of the differentiations established by pedagogicalism which create the space within which power is exercised. The
44 Michel Foucault, ‘Truth and Power’ in James Faubion (ed), Power: Essential Works of Foucault 1954- 1984 (2002) vol 3, 120: But it seems to me now that the notion of repression is quite inadequate for capturing what is precisely the productive aspect of power. In defining the effects of power as repression, one adopts a purely juridical conception of such power; one identifies power with a law which says no – power is taken, above all, as carrying the force of a prohibition. Now I believe that this is a wholly negative, narrow, skeletal conception of power, one which has been curiously widespread. If power were never anything but repressive, if it never did anything but to say no, do you really think one would be brought to obey it? What makes power hold good, what makes it accepted, is simply the fact that it doesn’t only weigh on us as a force that says no, but that it traverses and produces things, it induces pleasure, forms knowledge, produces discourse. It needs to be considered as a productive network which runs through the whole social body, much more than as a negative instance whose function is repression. See also Michel Foucault, Discipline and Punish: The Birth of the Prison (1991) 194: We must cease once and for all to describe the effects of power in negative terms: it ‘excludes’, it ‘represses’, it ‘censors’, it ‘abstracts’, it ‘masks’, it ‘conceals’. In fact power produces; it produces reality; it produces domains of objects and rituals of truth. The individual and the knowledge that may be gained of him belong to this production. 45 The word ‘subject’ as used by Foucault has two senses: people are both subjects (self-conscious beings) but they are also subjected (power acts produce subjection). See Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Law as Governance (1994) 29. 46 Michel Foucault, The Birth of the Clinic: An Archaeology of Medical Perception (1973) 172: If there is one approach that I do reject [it is the one] which gives absolute priority to the observing subject, which attributes a constituent role to an act, which places its own point of view at the origin of all historicity – which, in short, leads to a transcendental consciousness. It seems to me that the historical analysis of … discourse, in the last resort, be subject, not to a theory of the knowing subject, but rather to a theory of discursive practice.
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transmit legal knowledge and is ignorant of orthodox education theory, is clearly subordinate to the expert, whose effectiveness, alertness and understanding is superior. Similarly, Marlene LeBrun has distinguished between law teachers ignorant of orthodox education theory and teaching methods, and those who have incorporated them into their teaching practice. It is very clear which approach is to be preferred.^49 Pedagogical texts divide the total set of academic lawyers within the law school into ‘good teachers’ and ‘poor teachers’, and privilege the former over the latter. There is a third distinction, one which pedagogicalism did not create but which it nevertheless continues to recognise and enforce: the distinction between teacher and student. This is a distinction which has existed within the discursive field of legal education since the beginnings of the law school. The law teacher has always occupied a position of privilege in relation to the student, and while most pedagogical texts call for a greater emphasis upon the student’s learning, the teacher continues to be located within a privileged position. For all the talk of self-directed and lifelong learning, it is still the teacher who determines the content of the curriculum and who assesses the student, and the student is still expected to defer to the teacher’s authority. In maintaining a differentiation that appeals to many law teachers, pedagogicalism seeks to facilitate its propagation within the law school. On the other hand, recent pedagogical texts have tended to erode this privilege and authority. The teacher, no longer permitted to be idiosyncratic and distinctive, is now a generic ‘facilitator of learning’, a development consistent with corporatism’s categorisation and monitoring of the teacher as service provider and student as paying customer. While the distinction between teacher and student continues to be recognised and enforced, the balance of power has shifted in favour of the student. Law school administrators often feel obliged to cater to student demands at the risk of losing customers to their competitors, and consequently put pressure upon teaching staff to ensure that these customers are satisfied. The student has acquired, at the expense of the teacher, a greater say in the organisation and delivery of law courses.
respond to it, and sets the ground rules by making explicit what is expected from students as far as he or she is concerned, not by reference to other teachers. The expert is very alert to classroom events, and fully understands the value of reflection on practice as a way of adapting and improving. 49 LeBrun, above n 7, 34: Some law lecturers might believe that we can describe the rules of law in a lecture to a large group of students and call the process ‘education’. Perhaps this can be done more successfully if we actually do think that law (or a subject in law) is merely a set of rules to be learned, if we ignore differences in learning styles and students’ approaches to learning (eg, deep, surface or strategic) and if we dismiss educational findings about the teaching and learning process. Interactive teaching may seem of little value, for example, to a class lead by a black-letter lawyer teaching a statutory subject. If, however, we consult the literature on education our ideas about what we do in a classroom might change. Similarly if we regard law, or a particular subject in law, differently, as a conversation within a culture for example, we might be less likely to adopt a lecture format and strict didactic approach. Rather we might highlight interactive teaching in which the teacher ‘takes part in the conversation’.
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B Objectives What is it that pedagogicalism-as-power seeks to achieve? The primary objective of pedagogicalism, as with all discourses, is its own successful propagation. Pedagogicalism wants its proponents to inculcate within others the values and objectives of pedagogicalism, and to create new proponents and advocates. Pedagogicalism also seeks the enhancement of the status, within the law school and within the community, of the ‘good teacher’. Pedagogicalism was and is an effort by some legal scholars to distinguish themselves within the law school. This is an effort directed not only towards other legal scholars but also towards the students themselves. While many legal scholars continue to accord good teaching little weight, those law teachers who acquire for themselves a reputation amongst the students as a good teacher are often held in high regard. A third objective is the universalisation of pedagogical knowledge; like all discourses, pedagogicalism seeks to establish and enforce a regime of truth. The notion that good teaching involves the facilitation of learning, that learning is best directed by the student rather than by the teacher, and that the teacher should focus upon the welfare and experience of the student rather than on disciplinary knowledge, expectations of employers or intellectual rigour, are all subjective assertions which pedagogicalism seeks to portray as universal and necessary truths. Finally, vocationalism seeks the transformation of all law classrooms and all law schools into venues for the practice of the pedagogical notion of good teaching. It is this objective which has facilitated pedagogicalism’s recent alliance with corporatism. The detailed methodologies for the achievement of effective teaching and learning, the enhanced uniformity of approach associated with widespread acceptance of the meaning and importance of ‘good teaching’, and the possible cost savings associated with pedagogical innovations such as self-directed learning and online delivery, all appeal to the corporatist desire for efficiency, accountability and marketability. Of course, while pedagogicalism seeks the transformation of teaching practices within the law school, it is a limited transformation. Pedagogicalism also seeks to ensure that any change in law school practices is not too radical; it is concerned to maintain the primary distinctions between law school, law teacher and law student, the influence of the school over the teacher, and the authority of the teacher over the student.
C Strategies The strategies deployed by pedagogicalism in achieving the above objectives have changed over the years. Pedagogicalism traditionally relied upon the voluntary acceptance by legal scholars of the principles of good teaching. Pedagogicalism’s principal strategies were the word of mouth transmission of these principles from teacher to student and between peers, as well as through the legal education scholarship and law school texts identified in the first part of the paper as pedagogicalism-as-knowledge. These texts and practices sought to propagate pedagogicalism, to enhance the status of the good teacher, to universalise pedagogical knowledge and to transform teaching practice.
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assessment principles from the discipline of education. 53 The obligation upon academic lawyers to conduct regular teaching evaluations is one of the most compelling and effective strategies by which pedagogicalism-as-power seeks to achieve its objectives. The pedagogical construction of good teaching is one of the factors taken into account in tenure and promotion applications, so that an acceptance of pedagogicalism is to a limited degree rewarded by employment. The poor or deviant teacher is less likely to achieve tenure or be promoted.^54 According to one law teacher quoted in the Johnstone Report, ‘good teaching’ is
culturally supported in the sense that at end of day, teaching is seen as an important activity – and if you are not a good teacher you don’t earn the respect of your peers. Certainly you won’t get promoted. You are faced with the great pain of the small classroom with a group of students who are highly vocal and with high levels of expectation as to quality teaching. There is not much social distance in that situation, and most students talk … Most importantly, you have to be a good teacher to get promoted.^55 ‘Excellence in teaching’ awards have become increasingly common.^56 Part of the process of being nominated for, or applying for, such an award is the presentation by the academic of a description of their teaching, and the expectation is that such a description will be consistent with the pedagogical conception of good teaching. Teacher training programs are another strategy deployed by pedagogicalism- as-power. Traditionally it was not necessary for academic lawyers to possess teaching qualifications before being permitted to teach law; legal qualifications were considered sufficient. While it is still possible for a person to be appointed as a law teacher without teaching qualifications, many law schools now oblige new staff to undertake teacher training courses at which these academic lawyers
53 Richard Johnstone identified three motivations for conducting an evaluation of an academic lawyer’s teaching practices. See Richard Johnstone, ‘Evaluating Law Teaching: Towards the Improvement of Teaching or Performance Assessment?’ (1990) 2 Legal Education Review 101, 102–3: The first and most important basis is the evaluation of teaching where the individual teacher is concerned to discover areas needing improvement so that he or she can take steps to remedy weaknesses. This process, which is primarily diagnostic, is best seen as a natural part of good teaching. It is concerned with the teacher seeking information on the effects of teaching on students’ learning and ways of changing teaching to improve that learning. A second basis is the assessment of teaching performance for the purposes of staff selection, confirmation of tenure and promotion. This is a function concerned with management and seeks to ascertain whether a member of staff has achieved or is maintaining a specified standard. This process is not diagnostic, but rather focuses on reward and punishments. A third basis … is staff appraisal in which supervisors help teachers improve their performance… Pedagogicalism is apparent in Johnstone’s choice of words to describe the teaching of those teachers who pay insufficient attention to the incorporation of acceptable pedagogical practices: ‘needing improvement’, ‘weaknesses’. Evaluation is also defended as ‘a natural part of good teaching’. 54 Janice Gray, ‘Teaching Excellence in the New Millenium – Interviews with Professor Michael Adams and Ms Irene Nemes’ (2001) 3 The University of Technology Sydney Law Review 147, 147–8. 55 Johnstone and Vignaendra, above n 8, 445. 56 Teaching awards schemes were initially limited to those established and operated by individual universities, but in 1997 the Australian Universities Teaching Committee established a national award scheme with lucrative financial awards for those judged as outstanding. Gray, above n 54, 147–8.
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are introduced to and strongly encouraged to embrace a pedagogical approach to teaching.^57 Teaching and learning committees, often comprised of law teachers sympathetic to a pedagogical approach to legal education, draft policies and create programs to propagate the pedagogical notion of good teaching. At one Australian law school, for example, the ‘teaching interest group’
convenes from time to time, discusses issues in teaching and learning and identifies training needs. A few years ago it identified that people needed to learn to use PowerPoint, so everyone was trained in that. The group discusses things like how you use small groups in big lectures, how would you run tutorials? It also facilitates informal peer review.^58 Other schools have created administrative positions such as that of Director of Teaching or Associate Dean for Teaching and Learning.^59 Seminars on teaching and learning, often organised by Teaching and Learning Committees or by Directors of Teaching, have become ‘a standard fixture at many law schools’, 60 and provide
a continuous and active focus for discussion about teaching and learning, about the philosophy of teaching, so it’s important that it’s conceived of as a rank-and-file activity. It’s not handed out from on high. It is a meeting of teachers who talk about learning and talk about teaching methods, who talk about the philosophy of teaching and share ideas about addressing problems. 61 The normalisation of ‘good teaching’ and the pedagogical strategies of teaching awards and teacher training have been so successful that many law teachers now accept the dictates of pedagogicalism willingly. It is important to note, however, that the propagation of pedagogicalism has not gone unquestioned or been unopposed.
D Resistances Pedagogicalism has been challenged by those teachers who question the escalating levels of accountability, who resent the perceived infringements upon their academic freedom, or who simply prefer alternative approaches to teaching. Foucault insisted that every exercise of power engenders resistance.^62
57 At some law schools, staff are also encouraged to attend Australian Law Teachers Association (‘ALTA’) conferences and workshops. See Johnstone and Vignaendra, above n 8, 440 (citing one of their interviewees): In my view the best resource for improving teaching is the ALTA Law Teachers Workshops and we finance a couple of people to go to that every year. It’s excellent. It’s a week-long residential course and that’s what I advise all new [teachers] to go to. And it’s that sort of thing that you need that actually introduces you to effective methods of teaching and learning. Also it just keeps you in contact with what other people are doing. You continually get new ideas about what other people are doing. 58 Ibid 440. 59 Ibid. 60 Ibid 441. 61 Ibid. 62 Foucault, The Will to Knowledge , above n 3, 96:
