1
Ethics, Education, Law: Weaving the Text.
Draft
Dr Paul Maharg
Law School
University of Strathclyde
Abstract
The relationship of ethics to law is of central importance to every law teacher, but presents teachers and
course designers of postgraduate, vocational educational courses with a particular dilemma. How do
we deal in our educational practice with the issue of ethics and legal practice, particularly given the
skills bias of recent educational initiatives? This paper suggests that some lines of educational research
are useful to teachers of legal skills and ethics, for they open up to analysis and reflection the ethical
dimension of our teaching and the models of thinking and being we present and represent to our
students. In this sense, too, the literary representation of law also has a part to play in the development
of a critique, not only of the relations between law, ethics and skills, but of legal education itself.
Introduction
The forms of language are important here. What I shall be talking about is not ‘legal
ethics and legal education’ (this sets one apart from the other), but a few of the
enormously complex webs of relations between these three concepts. These relations
are never static, always changing, multi-layered, often simultaneous. They involve
the ways in which we are with our students: the context of our being depends on this
web and is a part of it. My language here is deliberately Heideggerian, for one of the
points I wish to make is that the ethical dimension of that relationship is
fundamentally a part of the ethics we teach, and the law that we teach, and of course
the ethics and the law that students learn too. It is our being in the moment of the
lecture, tutorial, workshop or more informal educational interventions that truly
characterises us as humans communicating about ethics and law. This ethical relation
has always absorbed educationalists. Plato gives it one definitive formulation in the
Meno. The famous dialogue on the nature of knowledge between Socrates and the
slave-boy, so often extracted from context, takes place within a more general enquiry
as to the nature of virtue. It is a central concern in many contemporary educationalists
– commentators on professional education such as Michael Eraut, for instance, and
more radical theorists and practitioners such as Linden West and Iain Stronach.
Ronald Barnett dwells upon the relation in most of his work:
To reduce human action to a constellation of terms such as ‘performance’,
‘competence’, ‘doing’ and ‘skill’ is not just to resort to a hopelessly crude
language with which to describe serious human endeavours. In the end, it is to
2
obliterate the humanness in human action. It is to deprive human being of
human being.1
How do we, teachers and learners, create these relations, these moments, and how are
ethics implicated in them. In this paper today I want to suggest two things. I’d like to
persuade you that one line of educational research is particularly useful in opening up
the ethical relationship in legal education, namely phenomenography. I shall apply
these to a case study of professional education in the Glasgow Graduate School of
Law. Finally, ?I’d also like to suggest that in literature we can, as teachers, encounter
models of thinking about this relationship which mirror to us ways of being with
students of which, caught in our own times and places and quality assurance
procedures, we can remain unawares.
Phenomenography: a way of thinking about education
Ference Marton, one of founding figures of the phenomenographic movement, has
described it thus: ‘phenomenography investigates the qualitatively different ways in
which people experience or think about various phenomena’.2 To him, the central
concern of phenomenographic research is the variation between experiences, and the
reasons for this: ‘[w]e do not try to describe things as they are, nor do we discuss
whether or not things can be described “as they are”; rather, we try to characterize
how things appear to people’.3 This appearance, phaino, is essential to the enterprise:
as Marton says, ‘phenomenography provides descriptions that are relational,
experiential, content-oriented, and qualitative’.4 These descriptions are experiencedbased, but their aim is not simply to record experience. Rather, phenomenographers
hold that experience is always of something – as the title of one of Noel Entwistle’s
articles pointed out memorably, the verb to learn takes the accusative. General
statements about experience in education can thus only be derived from specific
instances of units of experience. Of necessity these descriptions are ‘second-order’
descriptions of the world: not about people only or the world only, but about the
relation between people and the world.
Marton himself and his many colleagues in Gothenburg and elsewhere have
conducted a considerable body of research along phenomenographic lines. The
research has been influential in many ways. Diana Laurillard’s well-regarded text
XXXX is indebted to phenomenographic research (as well as the theory-building of
Gordon Pask), and a number of key educationalists have subsumed the method and
results. Entwistle’s research into deep and shallow learning, for instance, has become
a commonplace of higher educational argument, its currency boosted – and to a great
extent debased – by the TQA and the debates surrounding it. Prosser and Trigwell’s
analyses of teaching and learning in HE [see Marton & Booth for references] are also
good examples of the method in practice.
1
Ronald Barnett, The Limits of Competence: Knowledge, Higher Education, and Society, Milton
Keynes, Open University Press, 1994, p.178
2
Ference Marton, ‘Phenomenography: A Research Approach to Investigating Different
Understandings of Reality’, Journal of Thought, 1986, 21, 28-49, p.31
3
ibid, p.33. Cp with Wallace Stevens’ ‘The Blue Guitar’, especially the quote in your thesis.
4
p.33
3
Let us take a brief example of phenomenographic research. Bowden et al (1992)
analysed the conceptions of kinematics held by final year secondary pupils and level
one students at university. One of the problems he dealt with was the following:
A ball inside a train is rolled towards the back of the train. It travels 2 m.
along the floor in 3 seconds while the train travels forwards at a constant speed
of 10m/s. Discuss the displacement of the ball.5
In his discussion of this example, Marton points out Bowden’s analysis of the
different ways students understood this problem. Some treated the ball’s movement
as two separate movements – first one movement, then the other. Or they took the
frame of reference of the ground for granted. Or that of the train. Whatever the
students did, their understandings arose from their immediate experience of the
problem.6 As Marton observed, ‘[d]ifferent ways of understanding a problem are thus
partial, and what is more, they are differentially partial’.7 Teachers’ ways of
understanding are similarly partial. In the first instance they are looking for students
to give the correct answer – 28 metres. If a student gives the wrong answer, -- 2, 30,
or 32 metres for example -- it is then, as Marton observes, that a teacher will join the
phenomenographic research in enquiring of the student: ‘”How did you arrive at that
answer? How did you think about the problem?”’8 These questions are second-order
questions, as Marton points out, whereas the first (has the student got the right
answer) is a first-order question. [Doesn’t Laurillard also use this differentiation
in her work?] However, there is clearly a relationship between first- and secondorder questions: if the student receives feedback as a result of the second-order
question, one would hope that the result would be an improvement in understanding.9
In this brief example, we can see the phenomenographical method at work. Its object
of research is a relation between the subject’s own understanding and the object of
knowledge; its methodology is rooted in experience and its forms of argument derive
from the categorisation of qualitative data.
The phenomenographic method has been applied to a huge range of educational
experience, from films of nursery toddlers to films of teachers teaching. It has also
been applied to other professions: nursing, law, engineering. It lends itself to every
discipline and all stages. Done well, it frequently upsets common assumptions about
the role of teaching in learning, how students learn, and what student perception of
learning and educational actually is. For example, phenomenography has come to
J. Bowden, G. Dall’Alba, E. Martin, G. Masters, D. Laurillard, F. Marton, P. Ramsden & Stephanou
A. ‘Displacement, velocity and frames of reference: Phenomenographic studies of students’
understanding and some implications for teaching and assessment’, American Journal of Physics, 1992,
60, 262-68, p.264
6
Shirley Booth & Ference Marton, Learning and Awareness, Lawrence Erlbaum Associates, Mahwah,
NJ, 1997, pp.105-6
7
Ibid p.106
8
Ibid, p.118
9
In the above example, there is nothing in the problem or its answer that is problematic for either the
discipline or the teacher. However Marton notes examples from the field of science where attempts to
change patterns of educational experience of students have had resonances for the discipline. For
example, ‘Stelmach (1991) treated the major secretory glands of the head and neck holistically as a
single integrated unit on the basis of their secretory innervation. By doing so she managed to link
coherently structures that, although anatomically closely related, had diverse locations with the
standard textbooks. Although the driving force was educational, the outcome was non-trivial for the
field of anatomy.’ (p.121)We might ask whether the same is true of law: have texts been written as
teaching texts which have re-ordered the ways we think about the discipline?
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characterise the ways that students understand educational situations and the function
of disciplinary forms of learning within these. In one study, for example, 30 students
reading Economics and Political Sciences were asked to read a chapter from a
textbook on political science. An experimental group was asked to read a form of the
text where after each section they were presented with a set of questions designed to
help them think about the text’s meaning, its overall structure, the relations obtaining
between sections, thus stimulating a ‘deep’ approach to reading and understanding.
The control group were given the unaltered text. Students were tested immediately on
finishing reading, then two months later. The results were surprising: on both tests,
the students who read the unaltered text performed better, their understanding and
memory richer. Why was this so? Marton came to the conclusion that the questions
distracted students from dwelling on the experience of reading the text itself and
became themselves the focus of attention – ‘students had been focusing on the act of
learning rather than on the object of learning’ (p.169). Parallel studies confirmed
these results.10 As Marton described it,
[t]he task of reading the text became trivial and mechanical rather than
challenging and reflective. Such a text manipulation was dubbed pointing out
and its effect on learning, the erosion effect, the whole being a technification
of learning. (p.169)
In the above examples, variation in learning came about because of the different
nature of the controlled learning environment: one group of students was constrained
to approaching the text from a particular perspective. But Marton also ascribes
variation in learning to the ability to examine something from different perspectives,
and cites the analogy of appresentation – that peculiarly metonymic sense of the
whole derived from a part which infants learn very early. He went as far as to claim
that the understanding of a complex text required that ‘it had to be looked at … from
the point of view of one of its parts’, and preferably more than one part (p.150). This
was illustrated in a series of studies. In 1992 and 1994 Marton, Asplund-Carlsson &
Halász published two studies that examined how a group of Swedish and a group of
Hungarian students understood a short story by Kafka, namely ‘Before the Law’. 11
Eliciting the responses to the story of a group of Hungarian and Swedish school
children, who read the story three times over a period of three weeks, they discovered
that of the four different ways of understanding the story described by the children,
the most elaborative variations were those written by students whose views changed
dynamically from reading to reading:
These students seem to wish to explore what is meant, what is implied, in the
text by trying alternative ways of understanding the whole text or its parts on
the one hand and making explicit the implications of their way of
understanding the whole text or its parts, on the other. (pp.150-1)
In the later, 1994 study, the authors tried to bring about elaborative variation by
giving two out of three groups different sets of instructions on how to read for specific
10
Dahlgren, L.O., 1975, Qualitative Differences in Learning as a Function of Content-oriented
Guidance, Göteborg: Acta Universitatis Gothoburgensis; Säljö, R., 1975, Qualitative Differences in
Learning as a Function of the Learner’s Conception of the Task Göteborg: Acta Universitatis
Gothoburgensis
11
Marton, F., Asplund-Carlsson M. & Halász, L., ‘Differences in understanding and the use of
reflective variation in reading’, British Journal of Educational Psychology, 1992, 62, 1-16; Marton, F.,
Asplund-Carlsson M. & Halász, L., ‘The reverse effect of an attempt to shape reader awareness’,
Scandinavian Journal of Educational Research, 1994, 38, 291-98
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elaborations within the text. The result did not bring about a significantly more
complex understanding of the story in these groups, thus supporting Marton’s earlier
findings. The latter study had yet one more interesting feature. In the gap between it
and the earlier study, Hungary was in the process of becoming a western-style,
pluralist democracy. The authors found that the ways in which the story was
understood by the children were ‘strikingly different’, but the variation remained
identical.
What I wish to highlight in these studies is the phenomenographical focus on relations
between learning and understanding, the ways in which context affects learning, and
how the presentation of the object of learning affects the learning process.
As we shall see in the following case study, these studies have something to say to us
about the relations of law, ethics and education.
A Case Study: legal skills & ethics on the Diploma in Legal
Education
First of all, some context. The Diploma in Legal Practice is a course in professional
law and legal practice for students who wish to become solicitors or advocates in
Scotland. For entry to it, students require to have completed their LLB with or
without Honours, or to have passed the Law Society of Scotland examinations in
professional subjects. On completion of the course, students take up a traineeship for
two years, successful completion of which entitles them to their Practice Certificate.
The curriculum consists of seven compulsory subjects covering many of the key areas
of practice.12? The course was instituted in the late 1970s, and replaced a system of
apprenticeship. The course is managed and administered by the universities, but it is
taught by practitioners whose expertise lies within the domain of the various subjects.
The Law Society does not see its role quite as a regulator of professional legal
education in the way that the Law Society of England and Wales does, certainly postACLEC. As a result there is no clear statement of the model of legal skills to be
adopted by institutions. Furthermore, the Law Society has been content to allow the
universities to develop the curriculum within very broad guidelines, and to assess it as
they saw fit. The universities have done so, to the extent that the Diploma that is
offered in the four centres in a variety of features.13 Like many programmes affected
by what educationalists call ‘curriculum drift’, the reality is less the working out of a
coherent model, and more the product of a number of different historical initiatives by
the Law Society throughout the eighties, largely as a response to criticism by the
profession regarding the ability of newly-qualified Diplomates to undertake office
work. A new subject was formed, consisting of two mini-courses, ‘Solicitor-Client
Relations’ and ‘Professional Ethics’. Solicitor-Client Relations consisted of six hours
of small-group work on negotiation and client interviewing, and Professional Ethics,
12
The subjects are as follows: Civil Court Practice (including Civil Procedure and Civil Advocacy &
Pleadings), Criminal Court Practice (Criminal Procedure and Criminal Advocacy & Pleadings),
Conveyancing, Wills, Trusts, Executries, Professional Practice (Solicitor-Client Relations and
Professional Responsibility), Accountancy, Finance, Tax & Investments, and a choice between Public
Administration or Formation and Management of Companies.
13
The four centres are Aberdeen, Dundee, Edinburgh, Glasgow and Strathclyde universities. Glasgow
and Strathclyde recently have collaborated to form a joint Diploma cohort in the newly-formed
Glasgow Graduate School of Law.
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of ten hours lectures and tutorials. However it was generally recognised that there
was a need for more radical change. For the last four years or so the Law Society,
consulting with the profession and the universities, have been engaged in drawing up
a new curriculum which will be implemented next year for the first time.
Four years ago, Strathclyde University began to expand the skills aspect of this
subject. From six hours, the course was expanded to 20 hours of small-group work,
and included writing skills. The course was based on Donald Schön’s cluster of
concepts regarding the reflective practitioner. It was our stated aim to enable students
to become more reflective about the improvement of their legal skills (the practice of
which, in a legal context, was entirely new to most of them), with the hope that they
would be able to carry out this reflection in their actual legal practice during their
traineeships.
After the first year, the course was successful in terms of student feedback, but
students made two general and perceptive comments about the course. First, it was
clear that tutors were teaching very much from their own experience more from the
stated syllabus, and as a result students perceived a lack of consistency across the
curriculum. This of course is a direct result of having practitioners teach the subject:
it is considerably easier to control the method and content of a class if tutors are fulltime academics, in constant touch with each other and working in the same institution.
Secondly, the subject was seen by tutors and students alike to be the focus of skills
development: it became a skills ghetto, and it was becoming all the more difficult to
extend skills into other subjects.
This year, in the first year of the new Glasgow Graduate School of Law and double
the student numbers (to 194), the skills-based initiative was taken in a different
direction First, we abandoned the Solicitor-Client course, and instead held a
Foundation Course in Legal Skills. This course lasted for the first two weeks, was not
a part of any other Diploma subject, and focused entirely on legal skills, with units on
effective communication, legal problem-solving, interviewing, legal writing &
drafting, negotiation, advocacy.14 A brief unit on ethics was also part of the course –
this will be discussed below. Each unit began with a lecture/demonstration on the
skill in question, followed by preparatory work by students which was played out in
role-plays and simulations in a variety of small-group workshops. There were three
predominant models that influenced the shape and methodology of the curriculum.
First, in giving feedback to students we adopted the NITA model of performance
analysis and, as regards curriculum design, a ‘tell-show-do’ approach, in which we
described skills, showed students models of them in practice, then set up the situations
in which they could do this for themselves. Secondly, we imported Schön’s concepts
regarding reflection, and integrated this into the Kolbian cycle, which is in essence the
basis of the NITA approach. We implemented this by holding a separate reflection
workshop at the end of each skills cycle Thirdly, we embedded the skills within
Diploma subjects. We constructed a skills matrix and planned skills-based workshops
within the tutorial structures of six of the eight Diploma subjects in which students
would practise in specific practice contexts the skills they had begun to learn on the
Foundation Course.
14
This course was first suggested in a report by John Sturrock QC, Visiting Professor in Advocacy &
Mediation.
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At the end of the course we obtained feedback via a five-page questionnaire, eliciting
both quantitative and qualitative data, student interviews, informal staff feedback and
a more formal staff feedback session. This gave a considerable body of data which
was collated, and fed back to staff and students, with our plans for improvement based
upon it. The overwhelming response of the students to the course was highly positive.
It was clear that for the great majority of them the course was successful in achieving
its aims of foregrounding legal practice skills and giving students an introduction to
them that encouraged them to alter to a considerable extent their previously-held
views of legal learning.15 However, for the purposes of this paper I would like to
focus on two aspects of the feedback, and one particular moment during the course
itself.
Review workshops
Four separate review workshops were held in the two-week period of the Foundation
Course because in previous years we had had problems in encouraging students to
record their learning systematically, in learning diaries or other forms. Those few
who did told us in feedback that it had supported the reflective process (particularly
over a 10-week period), but many did not.16 Interestingly enough, of the students who
did keep a learning diary, a number already kept personal journals. For this reason we
decided to highlight the importance of reflection by giving it a separate workshop at
the end of a number of skills cycles, thus removing it from the embedded place it had
in the previous skills workshops.
However it became clear towards the end of the course, and very clear indeed from
the feedback that students learned little from the review workshops. They found that
they were often repeating points that they had understood and remembered from
earlier workshops, and were merely summarising and not learning anything new about
their skills. Worse, some of them commented that they found themselves in these
separate workshops coming to conclusions different, but not necessarily any more
enlightening that those they had formed at the end of the skills workshops. It would
appear that reflection, separated from the experience of the workshop, actually altered
the memory of carrying out the skill. This might seem to contradict Schön’s concept
of the place of reflection in skills development, but I do not think so. Indeed, in one
sense it actually supports Schön’s view of reflection. In The Reflective Practitioner
he describes the differences between reflection-in-action and reflection-on-action, and
advocates the former as a more powerful support for skilled performance, and the
more sophisticated form of reflection (particularly if the reflection takes place within
what he calls ‘hot’, or immediate action – interviewing a client, for example, rather
than the ‘cool’ action of writing or drafting, where we can remove or withdraw
ourselves from the action for spaces of time as we do it).
Ethics workshop
Both John Sturrock and I were determined that there should be an ethical component
to the course. To teach skills without any ethical context seemed almost delinquent.
We planned a lecture that would give a brief overview of the regulatory structure in
15
This was evident from the feedback, where many students commented that the course had made them
aware of aspects of legal learning they had never been aware of before.
16
A point made recently by Caroline Maughan in the findings of the SAPHE project, The Law
Teacher.
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which solicitors worked in Scotland, and a workshop on ethical dilemmas arising
from materials that students had already worked upon during the course. For a
number of reasons the lecture could not be delivered, so students worked upon the
case studies in their workshop. Their feedback on their learning in this workshop was
very interesting. After from the review workshops, it was one of the most criticised
parts of the course. The following is a sample of their comments:



I felt that the case studies weren’t real [this in spite of the fact that most of them
were taken from real life cases]
Case studies were divorced from the rest of the course
Felt we just treated them like little legal problems except we didn’t have the law
to answer them with
Pretty shallow


Why had this occurred? When the students praised the materials and their context,
they appeared not to experience the same when confronted with the ethical problems
arising out of these selfsame materials and contexts. The problem appeared
inexplicable at first glance, but by talking to students we began to piece together what
was going wrong.
Firstly, students had forgotten much of the complex extra-legal context to the
problems which they for the most part explored in some depth when they first
encountered the scenarios. In other words, they did not appear to be able to transfer
this complexity from their first readings and analyses of the case studies the previous
week to the ethics workshop.
Secondly, it appeared important to the students to experience the ethical dilemma as it
arose within the context of the role-play or simulation. If this did not happen, then
students tended to view the ethical problem as they would an undergraduate tutorial
problem in Contracts or Intellectual Property. It is not so much a distancing from the
problem as a problematising of the client’s problem as the type of problem they
solved in a specific way. This way was to look for the answer to the crux of the
problem in their lecture or tutorial notes, and to seek for the hidden traps, in the way
that a first-year undergraduate is taught in Contract law to discern ‘types’ of problems
such as application of the postal acceptance rule, silence is not consent, etc. And
students took this approach because we were socialising them into it. Instead of a
learning context that replicated the multi-dimensional complexity of real practice
situations, we gave them potted scenarios with ‘hot-button’ questions which have the
effect, in the view of Tom Morawetz, of polarising discussions around ‘simplistic
approaches’ to the adversarial system: idealism v. cynicism, for v. against adversarial
systems of justice, and so on: [c]hallenged to navigate between Scylla and Charybdis,
students will tend toward silence’. Second, the questions appear ‘either too easy or
too hard’.17 This is precisely what happened, for the questions tended to be answered
by fairly banal answers – quotations of sections or regulations – or lead into rather
aimless discussions of huge structural issues. It was clear that we were not in a
practice context here, and giving students an introduction to Schön’s steamy ‘swamp’
of practice, Durkheim’s state of practice ‘vacillation’, Nelson & Trubek’s complex
Tom Morawetz, ‘Teaching Professionalism: The Issues and the Antinomies’, in Ethical Challenges
to Legal Education and Conduct, edited by Kim Economides, Oxford, Hart Publishing, 1998, pp.221-2
17
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indeterminacy of practice: we had returned to the, arid altoplano of the black-letter
hypothetical.18 The phenomenographic features of pointing out, erosion, and
technification of learning – all these were present, and reduced the effectiveness of
this form of pervasive learning.
Effective communications
One of the first lectures the students encountered was an introduction to effective
communications. The lecture was based on aspects of communicational theory, and
included examples from speeches and videotape clips.19 At one point the lecturer
asked students for examples of excellent communication. One student suggested
Churchill’s speeches, others Nelson Mandela’s speeches, and Martin Luther King’s
famous speech outside the White House. All these were accepted by the lecturer.
Then a student called out ‘Hitler, at Nuremberg’. There was a pause, scarcely more
than a breath, but everyone in the room seemed to be thinking along the same lines:
how could this example be interpreted, was it genuine, was it right? The lecturer
paused, then reiterated gracefully that he had in mind excellent communication in the
moral sense; and passed on to the next point in his lecture. The moment passed.
Nevertheless it was a critical one, not just for the lecture, not merely for the
Foundation Course, but everywhere and always for the whole enterprise of teaching
skills. For Hitler’s torchlit processions, and even more so the propaganda films made
of them, with their emphasis on a dazzling display of power and authority, linked to a
fascist rhetoric of nationalistic aggression – all this was undoubtedly a deeply
powerful communicational event. The comparison spotlighted the moral ambiguity
that lies at the heart of the rhetorical enterprise. Plato engaged with it in Gorgias, and
subsequently the opposition of rhetoric and concepts such as truth, justice, virtue,
became a recognised trope.
In this respect, Plato’s distrust of art is understandable. Art’s relationship to ethics is
complex and indeterminate, and as aestheticians from Wilde onwards have pointed
out, the relationship has less to do with the intentionality of the artist than the effect of
the work of art. The question the lecturer asked the class was open, and dependent
upon not simply a moral view view of communication, but an impliedly artistic one as
well. As such, the brutal images of power in Leni Riefenstahl’s Triumph of the Will,
and the architecture of destruction and terrible loss in Libeskind’s Jüdisches Museum
in Berlin, are ways in which communicational excellence can be cited as examples of
art used to completely different moral ends.
Now, it is one very much relevant to skills-oriented courses. Stuart Toddington, for
example, has pointed this out:
… a laudable but insufficiently theorised consensus on the need for curricular
‘relevance’ has resulted in a narrowly ‘professional’ understanding of legal
skills. This … is inhibiting the development of an imaginative and critical
Schön, The Reflective Practitioner; Emile Durkheim, ‘Professional Ethics and Civic Morals,
translated by C. Brookfield, London, Routledge, 1992, p.94; R. Nelson & D. Trubek, ‘Arenas of
Professionalism: The Professional Ideologies of Lawyers in Context’, in ???? Lawyers’Ideals/Lawyers/
Practices (Ithaca, NY, Cornell University Press, 1992
19
Because of technical difficulties we were unable to show these examples.
18
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conception of not only the essential nature and wide importance of legal skills,
but of the very idea of legal education.20
Phenomenography, legal ethics and art
It could be said that in arguing the case for a strand of educational research literature
to be relevant to the theory and practice of teaching legal ethics I am open to the claim
that I am constraining my approach to ethics by adopting a positivist paradigm, one
which depends on its own research methodology and which leans rather dangerously
on a methodology that derives from educational psychology. This looks plausible but
probably isn’t. Phenomenologists do not fall into that category of social
psychologists for whom proof of social processes can be found only in objectively
verifiable phenomena (Danziger 1990).21 Rather, they eschew first-order statements,
as I have pointed out above, and emphasise the relativity of their research, deriving as
it does from perceptions of specific instances of learning or teaching. Billig’s
observation of psychology’s approach to research methodology that ‘tends to separate
the individual from the argumentative or rhetorical context’ may be true of many, but
not of phenomenology.22 There is no idealized learner or learning context, only
different learners in different situations, in which one may observe difference to arrive
at an understanding of the learning process. For phenomenologists, therefore, the
views that a learner will hold about ways of learning or about a particular learning
situation are often highly revealing. They would agree with Scardamalia & Bereiter
that ‘to the extent that students take an active role in learning, their own theories of
what knowledge consists of and how it is acquired can be expected to matter’.23
Phenomenographical research offers well-researched and epistemologically rich
explanations for the learning events in the Foundation Course described above. It
helps us by focusing attention on the following, among much else:
1. to see from the point of view of the student
2. one of the most important determinants of learning is what the learner already
knows (or doesn’t know)
3. the approach to the knowledge object determines engagement, understanding,
memory
4. implicate students in rich learning contexts
5. focus on the object of learning rather than the act of learning
These are some of the findings from phenomenographical studies. The phenomena of
pointing out, erosion and technification of learning outlined above are examples of
narrowing the field of knowledge, thus encouraging students to narrow still further.
This is precisely what happened in the review and the ethics workshops. Did we
Stuart Toddington, ‘The Emperor’s New Skills: The Academy, The Profession and the Idea of Legal
Education’, in P.B.H Birks, editor, Pressing Problems in the Law, vol 2. What Are Law Schools For?,
Oxford University Press, 1996, pp.69-90, p.69
21
Danziger, K. Constructing the Subject: Historical Origins of Psychological Research, Cambridge,
Cambridge University Press, 1990
22
M. Billig, Arguing and Thinking: A Rhetorical Approach to Social Psychology, Cambridge,
Cambridge University Press, 1987, p.119
23
M. Scardamalia & C. Bereiter, ‘Intentional Learning as a Goal of Instruction’, in L. Resnick (ed),
Knowing, Learning and Instruction, Hillsdale, NJ, Lawrence Erlbaum Associates, pp. 361-92, p.367.
For an example of this, quote Marton and Entwistle’s research on the objects of knowledge paper you
quote from….
20
11
narrow the conception of skills development for the students in our approach to
effective communications? We probably did, unintentionally. This crucial point will
need to be raised next year with students so that they can discuss the ethics of
communications itself; but we shall embed it within the ethics workshop so that it
arises from the students’ consideration of their own ethical relations to others in the
simulated transactions. Toddington points up the importance of this:
The problem … is that the narrow conception of skills employed in [LPC-type
literature] is now the dominant conception and that this dominance is
becoming more entrenched. Thus the space for imaginative discourse
becomes smaller as the habitual usages, associations and references of the
managerial/clerical perspective become more difficult to penetrate.24
‘Imaginative discourse’ is exactly the right phrase. For this reason, we intend to use
examples which develop the notion of artistry, an aesthetic of practice. We can
lecture on regulatory structures, but we cannot expect thereby to develop moral
conduct. To do this, we shall need to implicate students in examples and contexts,
giving them examples from art, theatre, film, poetry and novels, and we intend to
begin this process next year.
But the two issues of dissociation of reflection from action, and the dissociation of the
ethics workshop from a practice context are linked to this moment of moral
uncertainty regarding the moral nature of communication. It was not always so. Take
this passage, for example:
PASSAGE FROM FERGUSON REGARDING COURAGE, ETC
This passage is extracted from lecture manuscripts of Adam Ferguson, redolent of
enlightenment
There can be no revelatory link between rhetoric and truth or justice, either in ancient
or contemporary platonists. From Nietszche onwards there is only the communicative
relation, developed recently by Habermas, Bourdieu amongst many others. When we
reduce the complexity of this relation, in either our teaching or our research, we
misrepresent it to our audience. And yet all we ever have are representations: we can
never replicate the moment of practice for our students or in our research. Our
teaching is an art in which we seek to represent to our students the reality of ethics,
practice, legal problem-solving or any other aspect of the law. Yet it is not solely this:
the classroom has not merely a mimetic function, attempting to imitate the reality of
practice. It also has the function of commentary upon that practice. It has, in the
words of the phenomenographers, the capacity to maintain a space where what we
might call a second-order symbolic discourse upon representation might be created,
one where both legal practice and commentary require to be delicately balanced.
POETRY SECTION
24
Toddington, op cit, p.75, n.23