A new tide of educational philosophy is sweeping through the universities and into the education and training of future solicitors, as the traditional methods of teaching, assessment and training have all been found wanting in the face of the complex requirements of the 21st century1. This new philosophy challenges the values of traditional, lecture based teaching, rote learning by students and assessment by unseen, written examinations. Now, for many practitioners, the prospect of a debate as to the merits and demerits of didactic teaching and rote learning and such like is perhaps as about as attractive as a Vogon poetry recital but we should, however, be wary that a lack of vigilant interest in the topic may cost us dearly. This new philosophy acknowledges that its practical implementation will be significantly more expensive2, at all stages of education and training, than our present arrangements and it looks in all directions for funding and has even set down a marker for an annual educational levy to be collected as part of the costs of a practising certificate3. Such a levy may seem unthinkable but there seems at present to be no serious challenge to the merits of the new approach and, once those merits have been accepted for implementation, the money shall have to be found from somewhere. As the practicalities and costs of these new methods of instruction are now upon us, the time is perhaps right for the wider profession to consider the wisdom of this proposed departure from established and long standing methods and entry into a new and more expensive arena of education and training. Of course, there may be some members of the profession who would point to the recent drive into a brave, new, competitive world of legal practice and question the logic of subsidising the provision of a new breed of twenty first century solicitors with the very skills that will enable them all the better to compete with their generous donors and perhaps deprive them of their livings, but most of us would probably be willing to consider contributing either directly or indirectly to the funding of a more elaborate training system if that were shown clearly to be in the public interest and in the interests of the future standards of the profession. This new approach is widely accepted, claims to be necessitated by social change, bears to be approved and even compelled by government and presents itself as based on sound, guiding principles. It is the purpose of this writer, however, to widen the debate by considering the opposing propositions, namely, that the entire departure is based upon a series of fallacies, that it is likely to decrease rather than increase the value of the education and training process and that it is thoroughly against the interests of students, trainees, the profession and of the public and that, insofar as the proponents of this new approach seek access to additional funds, both public and private, for the exercise, those financial aspirations should be considered as relevant to the debate. On the assumption that most readers will have a reasonable recollection of the process of education and training that brought them into the profession, I would like to set out, in summary, what I understand to be the guiding principles of this new philosophy and to consider their merits.
EXPANSION OF LEGAL KNOWLEDGE
In the first place, the expansion in volume and complexity of modern law, now at the hands of two separate legislatures, with a third parliament in waiting, including the implementation of human rights, Scottish devolution and the adoption of European law is said to make totally impracticable the traditional educational goals of learning in the law degree the key provisions of all significant areas of the law in Scotland. These developments create a need for lawyers instead to be able to think imaginatively and analytically, to present well reasoned argument and to understand the broader context in which Scots law now falls to be developed so that, instead of attempting to carry the law in their memories, lawyers shall carry instead the ability to access relevant law and to apply it to the situations brought to them by their clients. In short, there is too much substantive law for this to be learned and students must instead acquire the skills of finding and presenting the law as required in particular situations.
It may be false, however, to argue that an increase of legal knowledge necessitates a departure from learning that information in favour of acquiring the skills of finding that knowledge and applying it to problems situations. That argument addresses legal knowledge as an amorphous body of rules and regulations, designed to meet specific situations and while this may be a reasonable description of much modern statute law, it ignores the principle based, scientific approach to law which holds that legal theory contains fundamental principles from which detailed rules can be deduced by logical reasoning 4. Simple volume of detailed regulation is insufficient grounds for the conclusion that legal science has grown beyond the range of undergraduate study and, before any drastic departures are undertaken, some demonstration is required that the body of law now depends upon more principles than may be studied in the course of the law degree. It was probably never the case that every legal rule and regulation was touched upon in the law degree and, if the increase in legal principles and regulation necessitates a reduction in the amount of detail with which the law degree should clothe these principles, then so be it, but that would certainly be a better option than the wholesale replacement of the teaching of legal knowledge with the inculcation of skills which should more properly be delivered at a later stage in the education and training of solicitors. Rather than concede to the influx of legal regulation, in view of the contents of some modern legislation, the academic may be best placed to examine that regulation for meaninglessness, contradiction, unintelligibility, political inspiration and a general tendency to legislate on the hoof without regard to existing principles and practice
REPLACEMENT OF DIDACTIC TEACHING WITH PROBLEM BASED LEARNING
Because traditional didactic, lecture based teaching promotes passive learning rather than the active involvement of students in the learning process, it is said to promote a superficial coverage of material which the student notes down and seeks to memorise, rather than to understand, and little or no insight is gained as to the purpose or meaning of that material. Where the teaching/learning process is addressed to realistic, relevant problems situations, the student is immediately stimulated to become actively involved and to develop analytical thinking and powers of problem-solving and imagination, all as required by the real-life practitioner. Research is quoted to show that problem based learning, more so than the traditional, didactic lecture/student situation, capitalises upon the student’s initial enthusiasm in selecting a particular degree course of study, develops the skills of problem-solving abilities upon which future clients will depend, creates independent working habits and self-management skills and an ability to adapt to changing situations and provides experience in team working and interdisciplinary co-operation. In short, prospective solicitors should acquire the skills required to be solicitors rather than the irrelevant skill of memorisation without comprehension.
However, the argument that didactic teaching encourages rote learning contains a fallacy within the fallacy, namely, that rote learning is a bad thing. The contrary is true. Rote learning is a good thing, an essential thing, a powerful learning tool, and intellectual achievement which calls for understanding, concentration and accuracy. It is a purely intellectual exercise, achieved within the mind of the student. Outwith legal study it is often used to make abstract theory available for the solution of immediate practical problems as the child learns the times tables in order to achieve otherwise impossible mental calculations and as we all use Thirty days hath September for the management of time. Its absence would leave Shakespeare silent and rote learning is now being studied as an antidote to Alzheimer’s disease and as an aid to mental health in general5. It is, however, when we consider its place within the realm of legal study that the principle fallacy is uncovered, because rote learning forms little or no part of legal study. Certainly, law students memorise essential information, as the soldier learns the parts of his gun and the doctor the parts of the body, but none of this is rote learning in the sense of committing sequences of words to memory by heart. This writer comes in contact with many relatively recent graduates in law and has frequently inquired as to extent that rote learning formed part of their method of study. Almost none has acknowledged having used rote learning to any great extent but some have owned up to the use of its mnemonics to assist recall of particular topics and some have referred to colleagues who have learned case names off by heart. This writer’s own recollection of undergraduate study includes only very little use of rote learning and, given the importance of the envisaged evil of rote learning in support of the new method of instruction, the absence of the substantial use of rote learning in the law degree would be correspondingly important in the demonstration of the insupportability of the new method. In short, rote learning is a good thing but is relatively rare in undergraduate legal study and is not a significant product of didactic teaching.
Further, the proposition that the traditional lecture delivery promotes superficial coverage, alternatively, that problem based learning fosters a deep learning and understanding, also contains a hidden fallacy, namely, that superficial coverage is a bad thing. It is not a bad thing. It is a good thing and an essential thing without which the study of law is meaningless. To take the assertion literally for one moment, let us consider the inquiry which seeks to ascertain the geological nature at, say, 100 metres below sea level. Before going deep, the enquirer must go superficial. If he started his bore at the top of a hill it would seem unnecessarily laborious and if he started at the top of a 100 storey high rise block of dwelling houses, it would seem to be insane. Reason dictates that he should first consult the superficial picture and then decide where to bore more deeply. In the practice of law it is even more obvious that there is no merit in seeking to understand how the deepest and most complex circumstances of human conduct and society are treated in law unless and until the enquirer has some understanding and perspective of the law as a body of rational principles, susceptible to human understanding, several, or even many, of which are likely to interact with each other in application to the situation under inquiry. Again, however, the major fallacy lies in the statement that didactic teaching promotes superficial coverage at the implied expense of understanding. While it may not always happen, there is unarguably enormous potential for abstract, intellectual achievement when mind meets mind in the lecture theatre, at the tutorial or in the study of learned texts and the contrary assertion is hardly fair to those diligent and capable lecturers that devote themselves to the preparation and delivery of excellent material, describing both superficial characteristics and the detailed significance of legal principles. A bad lecture may be bad, but a good lecture is not only a good way to deliver the knowledge and understanding of law, it is perhaps the best way in which the accumulated wisdom of legal thought can be properly transferred to future practitioners, given that textbooks cannot measure progress by eye to eye contact, relax tension at an appropriate stage or answer questions posed by listeners. In short, didactic teaching does provide useful, superficial coverage but is capable also of pursuing deeper knowledge and understanding. Taking the alternative assertion, that problem based learning fosters deep learning, this is a discovery that is racing through higher education and many institutions have undertaken to deliver courses in the problem based learning mode rather than by didactic teaching. The lecturer ceases to be a teaching expert but becomes a learning facilitator who releases the students’ energy and learning potential and addresses the realities of professional practice instead of the artificiality of the teaching classroom. Other interesting educational revolutions include the departure from traditional reading and writing lessons in primary schools under the ITA revolution some 20 or more years ago6, the merger of all levels of ability in the one classroom and, more recently, the approval of school pupils selecting the hours of attendance and subjects of study7. The problem with educational revolutions is that tragic mistakes are not immediately apparent. If, say, lorry-drivers or tight rope walkers were to adopt significant changes in method, then any defect in theoretical reasoning would probably become immediately apparent, possibly with catastrophic results. Not so in education, and one has to consider how many unfortunate persons were robbed of the full enjoyment of their lives by those theorists who argued that it would benefit them not to be taught traditional and transferable reading and writing8. It certainly seems to be a fallacy that law students would benefit by being taught less of the substantive law.
The Quality Assurance Agency
Another important argument in the new philosophy concerns the quality assurance agency, a Government agency which has, to put it somewhat shortly, made it a condition of university funding that degree providers, including law degree providers, demonstrate that undergraduates are given, as well as knowledge, an ability to solve problems and to conduct research along with transferable skills of analysis, synthesis, critical judgment and evaluation, together also with abilities of communication and literacy so that, as well as absorbing information, the undergraduate shall acquire the skills required for proper efficacy in the workplace. Allied to, and possibly as a result of, this development, there has been a widespread undertaking throughout higher education to reduce the use of a didactic or traditional lecture based teaching and to place more emphasis upon the provision of transferable skills and abilities as referred to above. This change may be far from fully implemented but there appears to be no challenge to the proposed benefit of that implementation. In short, the Government says it has to be done and everyone else is now doing it.
It is probably not necessary to expose the obvious fallacy here but some brief comment might be helpful to those who have had things to do other than to follow events surrounding the development of the Quality Assurance Agency, whose title alone should be sufficient to fix its place in relation to any intelligent debate. The QAA is an organisation which was created somewhere within government/civil service circles to exercise a UK wide jurisdiction in the field of higher education at just about the same time, coincidentally, that Scottish devolution was becoming a reality. This writer, for one, has formed the view that that the QAA is an entirely political economic organisation that has little to do with academic standards or the methods of higher education. At previous stages, there was some doubt as to whether or not the institutions of higher education would even allow the QAA to set foot in the universities for the purposes of inspection and whether the universities would accept the so-called benchmarks standards issued by the QAA. If one is interested in promoting useful education and training for future solicitors, there is nothing whatsoever to be gained by spending time contemplating the QAA, its benchmark standards or the extent to which these are adopted in institutions of higher education, or anywhere else. One might even chose to find it sinister where the state is seen to encourage or even to compel a departure from the traditional teaching of law, given that the state is the most frequent adversary of the citizen in court. For completeness, it is a fallacy that major changes should take place in the method of delivery of legal education and training on the grounds that the QAA says so.
Continuous assessment of students’ coursework instead of unseen written examination. The traditional unseen written examination is said to encourage rote learning or uncomprehending memorisation of material, regurgitation in an artificial examination situation and short term retention of information, all without a full understanding of the relevance of that material to professional practice. Passing the examination, instead of achieving professional capability, becomes the object of the exercise and, when the examination has been passed, the purpose of the study has been served and the information may be discarded. Where, on the other hand, progress depends upon the exercise of skills of research, analysis, synthesis, reasoning, drafting and presentation, preparation for open book examination or the writing of an essay in the student’s own time, the maintenance of a log book or the conduct of a case based project with peer group members, the students are assessed on the very skills and abilities which are required for practice. Irrelevant memorisation for short term isolated written tests is replaced with study and assessment which mimics the needs of professional practice and establishes a continuum of relevance from the commencement of the law degree right through to the process of lifelong learning and continual professional development which is the lot of the professional solicitor in the 21st century. In short, the prospective solicitor should be assessed on his ability to be a solicitor rather than an ability to memorise information for short term examination purposes only.
However, this argument contains an assumption that students abort the knowledge which they have previously accumulated for examination purposes, whereas, another interpretation is perhaps at least equally valid, namely, that, having studied for the unseen examination, the student achieves a peak of readiness for that particular objective, in much the same way as the practitioner prepares for proof or trial, after which the specific details retreat from the forefront of consciousness but remain permanently and indelibly imprinted in the recesses of the mind. It is perhaps appropriate that the student lawyer undertakes that exercise in circumstances in which there are no clients’ interests at stake. The experience of the learning and of the examination having happened, nothing in educational theory can change that position or erase the notes that were constructed during the learning process, to assist in fuller recall as and when refreshment of detail is required. Also, imperfect as may be the unseen written examination, it is the only available level playing field for assessment as the increasing use of other methods of examination is quite simply matched by the rising tide of plagiarism, which is now a serious, commercial proposition, particularly via the Internet. The truth is that unseen, individual examination fosters learning, that other methods of assessment have fostered plagiarism and the fallacy is that the learning is totally forgotten after the examination.
It is beyond the scope of this short article to explore fully the issues which arise in considering the different possible methods of professional education, training and assessment and it is likely in any case that the choice of method is rather less important than that the method chosen be exercised as near as possible to its potential. The contest for supremacy between different methods of delivery may well be as much a battle between conflicting career aspirations as between opposing philosophies and it may be more seemly for the practitioner normally to stand back and leave our teaching colleagues to sort out their own differences. However, in this instance and for the reasons stated above, certain fundamental positions which, until recently, may have seemed too obvious to have to state, are now under threat and my conclusion here is to attempt to state some of these positions and to ask whether or not it is the intention of the profession to change these positions:
- The Law Society accepts for the purpose of entry into the solicitors’ profession only those law degrees which are devoted mainly to the study of substantive law and which do not subject that aim to the objective of training in problem-solving.
- The Law Society accepts for the purpose of entry into the solicitors’ profession only those law degrees in which the progression and graduation of students is dependent mainly upon assessment of written answers to unseen questions, produced by students performing individually and on equal terms in examination conditions.
- The training of educationally qualified persons for entry into the solicitors’ profession is carried out mainly by practising solicitors under appropriate regulation by the Law Society and is not subject to organisation, delivery or control by any other persons or bodies.
- The solicitors’ profession does not subsidise any part of the academic education of prospective solicitors.
- This solicitor and trainee contract is subject to appropriate regulation and recommendation by the Law Society as to the nature and quality of training and as to the level of remuneration and other conditions but stands alone economically and no part of it is the subject of subsidy by non-training members of the profession.
Finally, it has to be acknowledged that there are problems which have to be addressed and, indeed, in addition to those already identified we have the challenge of maintaining existing standards of education and training achievement in the face of wider access, other problems emanating from at least the state sector of secondary education and a general moving away from the previous values on which much of our legal principle has been developed. All of these challenges exist and the legal implications have to be addressed and not dodged as the new philosophy envisages. Firstly, education should be tested by external and objective examination and the present régime of recognition of educational attainment verified by teachers who are interested in positive findings in that verification should be identified for the questionable currency which it utters. Secondly, a clear distinction ought to be maintained between education on the one hand and training on the other because the present confusion of the two falls between two stools and damages the provision of both. The Law Society, alone of the institutions in the frame, is able to fashion and deliver these objectives and might consider doing so instead of following this latest outbreak of educational jargon.
(The above article has been extracted from the author’s web page -home.btclick.com/msheridan/lecture.htm - on which any readers who are interested may find a fuller version)
In this issue
- Scottish Solicitors’ Discipline Tribunal
- What price the core values
- “It’s good to talk”
- Homeowner logbooks a step too far
- The Judicial Appointments Board – a misnomer
- Changed days
- In praise of rote learning
- The best laid plans
- Communication can curb complaints
- Separate probation and community service
- Simplifying insolvency proceedings?
- Online negotiation – changing the norms
- Website reviews
- Under pressure
- In practice
- Plain speaking
- Book reviews
- When law met hip-hop