IMPROVING CURRICULUM THEORY AND DESIGN FOR
TEACHING LAW TO NON-LAWYERS IN
BUILT-ENVIRONMENT EDUCATION
By Robert J. Morris1
(Copyright 2007 by Robert J. Morris)
In Press: for publication in the "Law in the Built Environment" special issue of
Structural Survey, scheduled to appear as a double issue of the journal (issues 3 and 4 of
volume 25) to be published in late summer of 2007.
ABSTRACT
Research Paper
Purpose
This article attempts in part to redress a deficiency in the “hybrid” environment
of teaching law to non-law students. Should the pedagogical approach be the
same or different for non-law students as for law students, and in either case, at
what points and to what degree? The research itself is far from exhaustive or
complete.
Design/Methodology/Approach
The article reviews the existing literature and makes use of the author’s
practical experience teaching law to non-law university students in building and
real estate.
1
Assistant Professor, Hong Kong Polytechnic University, Department of Building and Real Estate (BRE);
B.A. Chinese Language and Asian Studies (1972); MA Comparative Literature (Chinese-English) (1973);
Juris Doctor (1980); Member of Utah and Hawaii state bar associations; Member Ninth Circuit Court of
Appeals bar; PhD candidate, University of Hong Kong Faculty of Law (Chinese law); contact:
bsaikane@inet.polyu.edu.hk; Web page: www.robertjmorris.net. Thanks to colleagues, Professor Andrew
Noel Baldwin (Dean), Professor Francis K. W. Wong (Head), and Professor Martyn J. Hills, and the three
anonymous reviewers, for insightful comments on earlier drafts of this paper. Portions of an earlier version
of this paper, under the title, “Curriculum Design for Teaching Law to Non-Lawyers in Building Education
and Research,” were presented at the International Conference on Building Education and Research (BEAR
2006), 10-13 April 2006, Hong Kong, <www.bear2006.net/conference/>.
1
Findings
There are serious defects, and some progress, in both curriculum and
methodology. The demand for teaching law in these contexts has outstripped
the development of theory and practice to meet the pedagogical challenges of
the 21st Century. Nevertheless, both the literature and current programs
focusing on Hong Kong and other common-law jurisdictions reveal possible
ways to improve the situation. Since “professional knowledge is resistant to
any substantial restructuring,” departments must insist that change be made,
consistent with the findings, if true change is desired. Among other things, the
research thus far leads to a proposal regarding the need for greater attention to
“preparing the ground” for the study of law by non-law students.
Research Limitations/Practical Implications
Although the article reports some quantitative research, it is not primarily an
original case study but focuses instead on theory in methodology, practice,
pedagogy, and application.
Originality/Value
The paper fills an identified gap in our theoretical knowledge of the subject and
provides some ideas and suggestions for ways forward.
KEY WORDS
Curriculum design, curriculum theory, democracy, democratization,
educatedness, education, flattening, generalists, graduateness, holistic, hybrid,
law, language, non-lawyers, pedagogy, preparedness, preventive law, researchled, specialists, student-centered
I.
Introduction: Background, Findings, and Results
“If you have your why? for life, then you can get along with almost any how?”
2
—Friedrich Nietzsche (2000:6)
Ignorantia juris non excusat. Ignorance of the law does not excuse.
—Common law maxim
The findings from over three decades of published research in teaching law to nonlaw students in non-law programs (including inter alia building, real estate, business, the
military (Estes et al. 2006), and related disciplines), primarily in the common-law world,
are not encouraging (Hutchinson 2005; Skwarok 1995). Indeed, the findings are
sometimes startling and depressing; they reveal many deficiencies, inconsistencies, and
disagreements—particularly with regard to providing the “why” to students (Nietzsche’s
paradigm) and implementing “research-led education” (Freestone and Wood 2006; Leung,
M et al. 2006) that involves both teachers and students (McLernon and Hughes (2005).
The demand for teaching law in these contexts has outstripped the development of theory
and practice to meet the pedagogical challenges of the 21st Century.
As with law teaching in law schools generally (Morris 2004; Morris 2005), this
special corner of legal pedagogy could and must do much better in both what is taught
and the ways in which it is taught. This study therefore positions itself as a continuation
of the author’s past work (Morris 2004; Morris 2005) and a foreshadowing of further
work and development. Because of the on-going discontent and ferment, not to mention
the lack of consensus on what is to be done, there lies ahead an important job of work to
make teaching methods and curricula conform to the best practices indicated in the
research. Happily, there are some indications that things are changing for the better, but
so far only incrementally so (Boston College Law Library; Chan and Wong 2005;
Hargreaves 2004/05; Sidwell 2005, Siedel 2000). Because of an almost universal
“undertow of concern” surrounding issues of modern education generally (Friedman
2006:301), there is a present need to “test out” the findings of this past research in light of
educational needs and trends in the new century (Philips and Pugh 2002:50-53). Because
old habits die hard, what is required of the faculty is what Goldsmith (1999:89) calls
3
“curricular courage.” Hopefully, the product will be not only a student who possesses the
qualities and characteristics of “educatedness” and “graduateness” (Higher Education
Quality Council (1995); Mohanan (n.d.); Ross (2001), but also a “preferredness” of
programs and schools..
In response to this background, a two-year multi-approach experiment in both
undergraduate and postgraduate law classes at the Hong Kong Polytechnic University
(Poly U), Department of Building and Real Estate (BRE), has been undertaken since Fall
2005 to test the findings of the literature and the proposals, mostly using experimentation
in curriculum design and pedagogical methods. A small part of the experiment has
involved brief questionnaires (see Appendix) which were administered to practicing
professionals and well as to selected classes exiting BRE curriculum classes designated
BRE 206 (Legal Context for Construction and Real Estate [CRE]), BRE 337 (Hong Kong
Property Law), which are undergraduate classes, and BRE 544 (Principles and Practices
of Law), BRE 546 (Mediation Training), BRE 547 (Construction Law Project), and BRE
548 (Dispute Resolution Project), which are postgraduate classes for practicing
professionals. Each semester these account for about 400 students. Subjects taught in the
BRE curriculum include engineering, surveying, property management, construction,
design, planning, and related courses in mathematics, statistical analysis, and so on. The
purpose of each questionnaire is not to produce a final statistical analysis (indeed, it could
not do so in the present context), but to adduce a general sense of students’ perceptions,
to generate an ongoing Socratic discussion, and point to possible ways forward. In the
case of practicing professionals, they were asked to render a personal impression of a
counterfactual proposition. Responses to the questionnaires were not to be written but to
be discussed in conversation with the instructor, and in that regard a total of 116
questionnaires were returned in as many interviews and discussions. This figure
represents nearly 100% of the students enrolled in the classes the author personally taught.
Of this total, 68 questionnaires were returned by undergraduate students, and 48 were
returned by postgraduate students. A total of 16 questionnaires were returned from
practicing professionals in Hong Kong. Both groups expressed the desire for more
4
instruction over more time in more subjects to be added to the curriculum. This study has
as yet undertaken or produced no differential analysis to compare the student “product”
of non-law programs with the “product” of regular law schools, nor the “product” of nonlaw programs associated with law schools and those not associated with law schools.
These are more forensic and sophisticated questions that await further study.
The author enjoys the opportunity to participate in the introductory survey law
courses (BRE 206 and BRE 544) in the BRE at Poly U2, where innovation in teaching
law to non-law students has been undertaken with a good measure of institutional support
and resultant success (Chan and Wong 2005)—even though Poly U itself has no law
school. The BRE faculty has, for example, undertaken innovations in teaching
interdisciplinary Alternative Dispute Resolution (ADR) on a continuously-assessed,
team-taught basis where students take control of their education by researching real,
present community issues and then presenting the research in an interactive seminar
setting. It has also undertaken a program of Work-Integrated Education (WIE) in the
context of outcome-based education (OBE) and criterion-referenced assessment (CRA).
The research supports, and experience confirms, the conclusion that the best
approach to teaching law for other disciplines, being as it is both legal education and not
(Christudason 2006), must be a hybrid of methods and tactics (Bellah et al. 1996:300).
The word “hybrid,” and not words like “mixture” or “combination,” is chosen carefully
and on purpose, as the word suggests the combination of two or more things to create a
new third that is better than its components and predecessors—an idea captured in the
Chinese 結軌, a “joining of tracks” (Yang 2002:71,75). Practical classroom experiences
(case studies) and Internal Research Strategy Exercises (IRSE) show that the remedies for
the found deficiencies can be identified, discussed, applied, and taught (Morris 2005).
The objective of this research was to discover what has been found and to discuss how
the findings might be implemented in the new century, amid the processes of
globalization and global “flattening” (Friedman 2006), and with particular regard to how
Current programs and courses may be viewed at the Department’s Web site: <www.bre.polyu.edu.hk>.
The idea of a “preferred” (首選) university, with preferred programs and graduates, may be read there.
2
5
the findings of practice in Hong Kong and the findings elsewhere might inform each
other. Among the implications for curriculum design are greater use of practica
(primarily in small-group seminars and tutorials) in cross-disciplinary work, early
insistence on more research and writing for publication, conducting and managing legal
research (including e-learning), globalized thinking, intercultural experience, WIE, and
“preparation of the ground.”
Two problems that result from the still-hypothetical nature of legal study, at lest for
most undergraduate students, are (a) a kind of “continuity amnesia” from subject to
subject and semester to semester that results from (b) their inability as yet to see their
studies in holistic, practical context. These concerns become especially salient for the
study of law in any context if one aim of that study is to inculcate the values and practices
of civics, democracy, and democratization by enacting them within the academy (Wong
2005; MacBeath and Moos 2004), and practicing “preventive law” and alternative dispute
resolution (ADR) (Chan, E et al. 2005), especially where cultural norms and values differ
in the emphases they place, for example, on contractual formality versus cooperation
(Winn 1994; Luo 2000).
These matters have great significance if one accepts the premise that all educated
persons need some education, both foundational and continuing (Chan et al. 2002), in the
law. Given the modern proliferation of laws (codes, ordinances, statues, rules,
regulations), courts, and governmental involvement, it ought to be considered as
negligence or malfeasance for any professional (physician, surveyor, pilot, author, movie
star) to fail to inform himself of basic legal knowledge and to act accordingly, and doing
so ought to raise at least a rebuttable presumption that in any legal dispute, such a person
is the culpable party. In sum, ignorantia juris will be deemed to be willful and
unreasonable for all persons for whom special education and training, experience, and
official licensure are required, and from whom informed contributions to policy decisions
are to be expected. More than ever before, ignorantia juris non excusat ought to be the
professional rule.
6
I.
Problems, Aims, and Methods
The initial catalyst for this research occurred when the writer encountered a single
evaluation (not of himself) written by a former student of his university (not of himself)
who had left both the university and his enrolled program for the reason, as he put it, of
“the poor quality of teaching.” There was no explanation or qualification, no
identification of the problems or the persons involved. Even so, the question was
provocative in leading to a search as to why the teaching may have been “poor,” how it
might be improved, and how the student’s comment might fit into a pedagogical context
(Ting et al. 2006). The complaint was not altogether uncommon or unlike similar
complaints in higher education generally where research and publishing are rewarded
more than pedagogical acumen (Bok 2003:88-89). That anonymous and unexplained
evaluation became a defining moment—a kind of “hypothetical necessity” driving an
investigation of how our pedagogy, at least in the law, might be improved. Indeed, the
first question to be addressed was whether the problem lay in pedagogy at all, or whether
the dissatisfaction was inherent within the subject and the situation irrespective of how
the teaching was done.
Writing within the context of legal pedagogy regarding construction-contract law
and building education and research outside the law school, Stipanowich (1998) notes
that “scholarly treatment is spotty at best…. The paucity of scholarship is mirrored by a
lack of curricular emphasis,” as well as a “scholarly and pedagogical obliviousness” to
the study, for example, of construction law and an appreciation of its importance. He
states (pp. 496-97; emphasis added):
“Unless the explanation is a perverse form of intellectual snobbery, it must
be a pervading ignorance of the practical significance of and academic
challenge presented by the field of construction law—or a reflection of the
inherent complexity (real and perceived) of principle and practice in the
7
arena. Although today’s attorneys and industry actors have much greater
access to treatments of pertinent legal subjects than their predecessors, much
more can be done to enhance the level of scholarly treatment and
interdisciplinary discussion of legal rules.”
The published research reveals that insofar as the discipline follows the model
that has served lawyers so well (the traditional study of black-letter law and case law in
the lecture-tutorial paradigm or Socratic Method with a single final essay-examination
assessment), it is not serving well the needs of these “other program” students or
equipping them for the functional roles of their respective industries. That system often
fails to identify their difficulties, weaknesses, and needs. Indeed, the traditional system
may no longer be serving even the law school well (Schwartz 2001). As Endeshaw
(2002:42; emphasis added) concludes regarding his study: “[T]he confusion so starkly
manifested among the respondents surrounding the applicability to new situations of the
legal rules they had learnt suggest[s] that the current [traditional] approach deployed in
the School must at least have been a contributory cause.” Change must be made (陳伯璋 /
Chen P C 2005), but here is the rub: Lawyers, of course, must teach the law courses to the
non-law students because no one else is qualified, but what pedagogical model is there
other than that of the law school that produced those lawyer-teachers? How does the
faculty unlearn or modify its learning of the very process that made it what it is, and then
replace it with something different with which to teach others the same subject outside
the law school? As Cownie (1999a:51) points out, there is the “well documented
problem that professional knowledge is resistant to any substantial restructuring,” and
this includes a downright anti-intellectualism about the pedagogical theory and
philosophy of education and curriculum (Cownie 1999a:44-45; citing Feinman and
Feldman (1985); Cownie 1999b; Bok 2003:26-27, 180). The balancing of doctrine,
content, theory, practice, and emphasis outside the law school will be different from that
within the law school, and it will require frequent adjustment (Skwarok 1995), but it is
always necessary (Webb 1996).
8
Several things are clear about the (post)modern, post-WTO world and the project
of education in that world. Most importantly, the old distinctions and barriers between
“trade” school and “academic” school, as well as between training and education, have
fallen. So also have the distinctions and barriers between “theoretical” knowledge and
“applied” knowledge (Bok 2003). Cross-disciplinarity, if it means anything, means the
disappearance of compartments, the “joining of the tracks.” The old paradigm of the
university and its classrooms as a world apart from the “real world” where one may
“retreat” to pursue abstract learning “for its own sake” has blurred if not disappeared. All
of this is part of what Friedman (2006) has aptly termed “flattening.” Stated another way,
If you always do what you always did, you will always get what you always got. Today’s
professionals no longer cede the knowledge and understanding of the law to the private
preserve of the lawyers. Nor do they cede the responsibility for their education to others:
“Tell me, I will forget; show me, I will remember; let me do it, I will understand.” The
subject of “law” has thus become the discipline of “law you can use”—practical law, law
in the trenches, applied law— not only for would-be lawyers but also for that vast
population of “non-lawyers” in other professions who must nevertheless deal with law.
Law is part of both the educational and the professional industry (Godonou 2003:15). It
is no longer one of the “external drivers” for change but has become internal and endemic
to change in the professions themselves. Nowhere is this more true than in those
disciplines and cross-disciplines where law is taught to non-lawyers. For would-be
lawyers, of course, there is the very real necessity at the end of the road: that of becoming
a lawyer and being competent and responsible in the all the demands of practice. But
these changes also bear substantial import for non-law-school students. As Bunni
(2000:114-15; quoted in Chan, E, et al. (2005 n.2) notes (emphasis added) :
“Standard forms of international construction contracts produce a second layer
of legal principles through their standard forms of contract, which are
superimposed on the applicable law of the contract between employer and
contractor. It is difficult and unhelpful for anyone to be involved in the
9
resolution of disputes arising from such contracts unless the person is very
familiar with, if not an expert in, the areas of these forms and the disputology
incorporated in them.”
For the students on the non-lawyer track, however, the necessity for them to learn at
least a modicum of law may not be so apparent—even if they are already aware that at
sometime in their approaching professional lives they will almost certainly “be involved
in the resolution of disputes arising from such contracts.” It may be necessary, therefore,
for the curriculum and its exponents to supply a kind of hypothetical necessity—at least
at first when the student may be asking, as one student wrote, “Why do I have to study
this stuff? Can’t I just hire a solicitor whenever the need arises? As a practicing architect,
engineer, manager, etc., I fully expect to have a whole bevy of barristers on retainer. The
will have their bailiwick; I will have mine. Why should the twain meet?” The difficulty
with this situation is that not all students, as Bok (2003:161, 163, 179) points out, are
fully in a position to know what they need. Most students who returned the subject
questionnaires and participated in the related discussions in this study focused their
strongest views on question 3 (“If I could make any changes to the mandatory
programme of law study, the changes would be—“). Some who answered perfunctorily
wrote such things as “no examination” and “less material” or “less workload.” The
majority, perhaps counterintuitively, wanted more detailed illustrations, examples, and
case studies (perhaps for the vivid exemplary or story content of case reports, which are
more accessible to new learners than “black-letter law”). As every legal practitioner
knows, many professionals (and indeed non-professionals) are “out there swimming
among the crocodiles” and do not know it—would not recognize the danger if it
approached them. Legal problems are not always self-evident, and recognizing them
requires specialist training. One may not always know when it is time to call in the
solicitor. Resistance to such training does not make the dangers disappear. Such inertia
may be partly overcome by using real-life stories that demonstrate the immediacy of
10
actual legal problems within the students’ future professions (Chow and Li 2005), rather
than teaching a great deal of theory or jurisprudence. All is practical.
Many respondents found the mandatory study of law to be relevant and for reasons
that demonstrated their knowledge of the “real world” they will encounter after
graduation. In other words, they saw the study of law as generally useful for reducing
future breaches of contract, commission of torts, and resultant lawsuits—and some
considered the interplay between contract and tort principles.
Question 6 on the professional questionnaire asked a counterfactual question: “Can
you recite any specific example of when your legal training has helped you avoid,
mitigate, or settle a legal problem or a lawsuit in the practice of your profession?” It is a
“what if” question. Even so, a majority of professionals responded affirmatively,
indicating at least a view that their legal training was relevant to advancing the cause of
“preventive law.” The respondents had no problem articulating their own need to study
the law—all seemed to accept it as important and necessary. Thus, the differences
between the two groups..
The question of relevance interrogates what Leung, M et al. (2006) refer to as “deep
motive.” The fair, reasonable, and simple motive is this: Every professional decision or
choice you ever make, starting now with your academic career, is a potential legal and
even litigable issue. So the student must get used to it—must start learning now to
embrace and use this reality. How, for example, can one hope to understand the contents
of something like Sweet’s Legal Aspects of Architecture, Engineering, and the
Construction Process (2000) (to pick just one example) if s/he has no solid grounding in
what constitutes the “legal aspects” of those subjects? Both students and practitioners
alike need to see that various subjects and disciplines are like islands of the sea, all
seemingly standing apart and discreet; but the law is the sea itself, and under the covering
water, all the islands are actually connected in one.
The New Curriculum Design: Preparing Professional Clients
11
The challenge for curriculum design in this context is to find the balance between
a full-blown legal course as taught in the law school, on the one hand, and the watereddown, often erroneous “law lite” of the self-help books and guru courses on the other—in
other words, to teach students to “think (enough) like lawyers” (Morris 2004; Morris
2005) without making them into lawyers, and to ensure a match between the school’s
primary mission statements and program offerings (Wang [王欣] 2004). The goal is to
equip learners with sufficient knowledge and skills to do two things: (a) to work
intelligently with their lawyers (in-house or retained) when they enter the world of their
chosen non-law professions, and (b) to keep themselves out of legal trouble in the
practice of those professions with their colleagues—in other words, to practice preventive
law and its counterparts: preventive management, preventive leadership, preventive
networking, and so on. Prevention is the quintessential rationale. The first goal is
proactive; the second is defensive. Of course they will have legal counsel for the blackletter work. But they need their own substantial legal knowledge in order even to read
the daily newspaper and to make business decisions based on “common sense.” They
need to know how to use the law library. They need to know how to find legal
information on the Internet. Hutchinson (2005:4), citing an important article by Byles
and Soetendorp (2002), identifies other desiderata: the need for practitioners to apply the
law to their discipline and understand its effect on their work; the ability of practitioners
to shape the development of the law as it evolves (law reform)—to make the law serve
them and their profession.
But most of all, they need to know enough to know when to seek professional legal
help. The analogy is often made to that of a patient and doctor: The patient needs to
know enough about health and medicine to practice preventive medicine, to know when
to take an aspirin, and when to visit the doctor—all because it is cheaper and easier to
stay well. Ideally, all university students in all the professions would be required as part
of their general education to have a solid amount of law in their pre-professional and
professional majors. To this end, the author would prefer to restructure the polarity of
“lawyers versus non-lawyers” to become lawyers versus “potential clients” and to divide
12
the category of clients into lay and professional. Hence, the job of the curriculum is to
prepare and foster professional clients—the kind of clients that every lawyer wants and
needs, clients who posses a substantial legal literacy to participate in the decisions that
will affect them in their careers and understand the legal materials relevant to their
subjects. Hence, the faculty is not training them to be mini-lawyers, “lite” lawyers, law
clerks, or counterfeit lawyers, but professional clients who have the knowledge and skills
to work with the lawyers on their team to achieve their professional goals and solve their
professional problems. This would—
—reduce malpractice, the costs of insurance, and lawsuits
—reduce litigation and potential liability
—reduce fear and insecurity; increase confidence
—aid the lawyer-client relationship
—reduce the practice of “Humpty-Dumpty law.”3
But in order to do all this in a curriculum not primarily devoted to the teaching of law, the
curriculum must be designed to answer this question: How?. It must be student-centered
(Liu 2003), meaning that the students must take substantial control and responsibility for
their own learning, to start professionalizing early, to work with those already in their
industry. It is this participation of these “industry actors”—the non-lawyers, the clients—
across disciplines that is the challenge, as McIntosh and Bailey (2004:19) stress when
they urge breaking out of traditional “organisational silos” in the academy. Since
3
For those not familiar with the nursery rhyme, Humpty-Dumpty was as egg, usually depicted as a welldressed Victorian gentleman:
Humpty-Dumpty sat on a wall
Humpty-Dumpty had a great fall
All the king’s horses
And all the king’s men
Couldn’t put Humpty together again.
It is generally considered to be a morality lesson and a cautionary tale, like that of “spilled milk”:
Prevention (preventive medicine, preventive law) is better, easier, and cheaper than trying to fix a problem
after it has occurred. Indeed, the image suggests the impossibility of fixing what is already broken.
13
Stipanowich’s gloomy assessment noted earlier, some improvements have resulted, but
they have likewise been spotty and incremental. Indeed, Henri et al. (2004) document
that curriculum development of innovative teaching in construction technology still needs
to address students’ “deficiency in powers of analysis, evaluation, synthesis and applying
knowledge” because courses are too heavily teacher-centered and passive—instead of
problem-based, issue-based, and student centered, as they should be (see also Doherty
and Singh (2005:56)). By the same token, the traditional law school essay-type
examination may not be the best in this context. As Hargreaves (2005:1) notes, “while
essay type questions do test thinking skills, logic, understanding and writing skills, they
may not test the breadth of the subject matter as well as short answer and multiple choice
questions.” Hargreaves suggests using a mixture of these types of questions. This
mixture of methods ought to mirror a mixture of modules and combinations of topics
across the curriculum.
Where the students are working in their second language, this necessarily includes
language teaching. In a previous essay the author wrote: “I can testify that all law
teaching, indeed all teaching, is always language teaching, and (these days) it is almost
always remedial” (Morris 2005:62-63). This departs from Chan and Wong (2005:8), who
claim regarding the MSc (International Real Estate) course: “the aim of the course is not
about testing students’ English level.” The law lives and moves and has its being in
language—a precise, special, covenant language—and for the common law, that
language is English. Learning the law is as much about expressing the law in that
language and its special vocabulary as it is about knowing the law’s substantive doctrines
(Howe 1990). Students must know that “consideration” in contract law does not mean
what it means in everyday parlance. As Citibank Vice-President Carl Felsenfeld (198182) has aptly said: “Lawyers have two common failings. One is that they do not write
well and the other is that they think they do.”4 These and related problems of cognition
4
See this and other relevant bibliography on the subject of plain English and legal writing at
<www.lisibilite.net/articles/bibliographienfernbach.pdf>; seen September 1, 2005.
14
and critical thinking (“thinking like a lawyer” [not “lawyering”]) are central to all
teaching of the law (Morris 2004).
Cotgrave (2005) notes the superficiality of teaching in the related subjects of
environmental health, safety, and welfare, and argues that curriculum design and
identification of learning outcomes may change significantly because of such events as
new legislation and government policies—again, the impact of the law on non-law
subjects. In urging interdisciplinary approaches to designing the construction curriculum,
and citing Jucker (2002) and Wolfe (2001) in support of the need to “train generalists”
who see connections and make links across different disciplines, Cotgrave further states
(p. 33):
“The construction industry is complex and fragmented with many of the
decision makers working for different organizations and being of different
professions. The ability to design solutions which reflect a holistic
appreciation, requires working closely with other professions.”
This is correct, but this author parts company with all of these writers in their
binary approach to specialists versus generalists. The best-trained people are those who
combine both specialization and generalization (Johnson 2004). Specialization and
generalization work in tandem—the “two tracks” again. These problems are endemic to
law teaching generally whether in common-law systems or in “Confucian” learning
cultures and in pedagogical situations where different systems of law (i.e., Hong Kong
common law and PRC socialist law) are compared (陸根書和王若梅 / Lu and Wang 2004).
Hence, in our Poly U experiment now underway, the teacher always gives research and
writing assignments that replicate the disorder of real life, the untidiness of research
(Schwartz 2001). Students are told, per the familiar saying, that it is important to teach
them how to fish instead of handing them a fish. The writer builds into assignments a
few strategic vagaries such as misinformation, partial information, misdirection, and error,
collects such items from his own research and practice, and then folds them into
15
assignment materials. Students must learn that problems do not come neatly packaged in
canned assignments where every detail and step are plotted for them without interruption.
They receive some bad footnotes, incomplete directions, wrong names and titles,
conflicting dates and stories, library assignments to find missing or misplaced items.
They discover that part of the assignment is to test the creative ways they can use to
figure out how to overcome these all-too-real obstacles and come up with the desired
results in spite of them. Their motto becomes: Improvise, Adapt, Overcome. They learn
early-on that “research is total war” and are repeatedly asked if they have the 奮鬥精神—
the spirit of combat, the fire in the belly. He tells them they must compile their own
syllabus for the course. At first this daunts many of them, but as they learn to cope with it,
it becomes a challenge and a game—even a contest of wits. Before they move out of the
classroom into the office, they must understand that as soon as the law class teaches them
about the “reasonable person” in their profession, it raises the bar for them by imparting
special knowledge: They now have actual knowledge of the legal standard by which their
professional conduct will be judged. And the end-point is a student much better equipped
to deal with what s/he will face when they enter the thrust-and parry of professional life.
II.
Curriculum Design Proposal: Introduction
This is a proposal regarding a possible curriculum-design modification in the
legal curriculum for non-law-track students. It is based on three observations which were
discussed in the prior section. The first is the fact that there appears to be a lacuna in the
preparation our students at present receive in their study of law—namely, training in
“how to study law” in contradistinction to the study of substantive or “doctrinal” law
subjects themselves. The second is the conclusions reached from a survey of the
literature on the teaching of law to non-law-school students, which suggest that there is
considerable room for improvement. The third is the presence of obvious and recurring
pedagogical problems encountered by such students when they undertake not only the
16
basic preparation and writing of required subject courses, but also their special research
projects and assignments across the professional curriculum, where there is a lot of
confusion, redundancy, fear, and misdirected effort. All of these observations suggest the
need for something more than the present curricular structure provides. The purpose of
this proposal is to generate discussion of these important matters as a foundation for the
design of a course or courses to remedy the perceived deficiencies.
How To Study Law: Preparing the Ground for Law Students & Non-Law Students
When new students, whether undergraduate or postgraduate, commence their
study in the law school (the University of Hong Kong (HKU) is an example), they are
required by both the law school and the Graduate School to undertake several mandatory
classes. Some of these classes are offered by the law school, others by the Graduate
School for all postgraduates, others by other academic departments of the university.
Some of these may be new or remedial to some students, but all are designed to “prepare
the ground” for the study of law (Morris 2005). This cluster of classes includes legal
writing (offered by the English Department; see also Bruce 2002), reasoning and logic
(offered by the Philosophy Department), Introduction to Thesis Writing (Cooley and
Lewkowicz 2003a, 2003b)5 and quantitative/qualitative research (Patton 2002) (offered
by the Graduate School), various library-orientation courses, courses in computerassisted research (offered by Lexis-Nexis and Westlaw, as well as designers of
programmes such as HKLII), beginning and advanced legal research methodology
(Cottrell 2003) (offered by the law school)6, and so on. As the subjects indicate, all of
5
The book is the result of handout materials provided in the class over a period of several years. It is
designed to be used not merely as a textbook to be read but also as a practicum following the activities of
the class, which was organized into student study- and work-groups meeting on a weekly basis.
Information about the HKU Graduate School courses may be read online at
<www.hku.hk/gradsch/web/student/course/index.htm>.
Professor Cottrell’s book is supplemented in the Law Library by practical courses in computer-assisted
legal research (Lexis-Nexis and Westlaw) and in her own course in “Advanced Legal Research
Methodology,” which this author has taught since her retirement in 2004. Compare the double-degree
programmes offered at Hong Kong City University; online at
<http://bccw.cityu.edu.hk/main/wp_program_double.asp>; seen March 23, 2006.
6
17
these courses are designed to give the students the tools they need throughout their study
of the law and to remove the fear caused by the newness and strangeness of the subject.
They are designed to answer questions such as “what is law?” and “what is not law?”
They are the beginning efforts to begin tuning their minds and to teach students “how to
think like lawyers” (Morris 2003). Indeed, some courses labeled “advanced” are as much
for beginners and “beginning” and “introduction” classes because many “advanced”
students are, in fact, beginners when it comes to law (Philips and Pugh 2002).
If this is the “ground preparation” work for full-time law students, a fortiori it
ought to be at least the same for non-law students studying law in other degree programs,
whether or not such programs are taught in conjunction with law schools or not where the
offering of law classes by a university with a law school may provide the advantage of a
more complete law library and other resources than a university without a law school.
Indeed, such non-law students might require more preparation because of the absence of
motivating factors or hypothetical and actual necessities.
But many non-law students are left to puzzle these matters out as best they can
according to their own lights, help from their peers, and whatever assistance they might
glean from those in the classes ahead of them, who similarly puzzled it out when they
started a year or two earlier. Why this should be the case is a bit of a mystery. It seems
that perhaps one reason argued by non-law professional faculty is that “we are not a law
school” and are “not preparing students to become lawyers.”
Even if we grant the truth of these propositions, the fact remains that many of the
classes which the non-law professional faculty teach create and expect the full rigour of
regular law-school classes. Examinations test the same kinds of insight and
understanding, in the same ways, as law-school exams. In other words, the limitation on
the non-law-school curriculum as compared with that of a regular law school is not in
depth but in breadth only. Does this therefore require that the approach taken for nonlaw students as compared to law students should be the same or different, and in what
points and to what degree? At Poly U the curriculum of course focuses on more
specifically “polytechnic” legal subjects rather than the larger general spectrum of law-
18
school subjects, but it focuses on them in the same depth and detail as the students would
encounter in counterpart classes in a “regular” law school. And certainly in all of this,
the students face the same problems of research, thinking, writing, and scholarship that
their law-school counterparts face. Thus, if the academy is serious about preparing
students to know certain aspects of the law, it needs to start them out on a surer footing.
If the curriculum design requires students simply to “jump into” their study of
doctrinal law, whatever they learn about finding the resources they need occurs in a
haphazard way—either by what they get along they way, or what they can glean on their
own. The school may assume that they will obtain this by osmosis as they sit in their law
classes. They receive a brief general orientation in “how to use the library, “ which
includes finding legal materials, but this does not include instruction in how to read and
understand the law they find. Hence, at the beginning of each school year, it would be
good to assemble all the students and explain to them—teach them—why their legal
study is essential and provide the foundational tools they will need for that study.
These problems multiply as students progress toward the postgraduate level. The
author has watched many oral proposals for legal research projects and has counseled a
number of students who are working on legal research and writing. One task—perhaps
the task of tasks—virtually all of them struggle with is the all-important job of forming a
(hypo)thesis for their work. As every good researcher knows, learning how to do that is
neither easy nor self-evident, yet it forms the foundation for all that follows in a
successful project that “turns over new ground.” Other problems include how to
adjudicate between good and bad sources (Cooley and Lewkowicz 2003:26; Phillips and
Pugh 2002:24), how to prepare footnotes and references, and in not a few cases how to
write presentable academic English (Orange 1986; Hong Kong Polytechnic University
Guidance Notes 2005). A crucial teaching point, of course, is that “adjudication” is a
high-level skill of both law and scholarship. Many of these are skills that cut across the
curriculum (i.e., they are not specific to the study of law)—skills that students need as
transferable life- and profession-skills. So far as the author is aware, there is not at
present any systematic collection of data as to how our graduates are perceived, either by
19
themselves or their employers, specifically with regard to their knowledge of the law.
For that matter, there are insufficient data indicating the feelings of graduates as to their
own education in the law when they are our students. Indeed, many students do not even
have a mature grasp of “how to sit a law class” or how to write a good final exam. The
primary concern undergirding most, if not all, of these problems is the worry on more
than one student’s mind: “If I’m not in law school, and I don’t intend to become a lawyer,
why, then, must I study the law?” The academy owes them a better answer to that
question than our mere fiat: “Because we say so.”
The concerns discussed above cannot be remedied (if indeed they are defined as
deficiencies) without amendment and addition to the present curriculum. The lacunae
could be addressed and remedied in a single, one-semester course, entitled perhaps
“Introduction to the Study of Law for Non-Law Students.” It would best be taught
through a team-teaching approach and staff. Three preliminary questions arise. Are
there the departmental desire and will (including available faculty) for such a change? Is
there the budget for such a change? Is there room in the curriculum for such a change?
The three observations noted at the beginning of this proposal and the suggestions raised
by the research indicate that such problems should be addressed through changes in
curricular design. Doing a more thorough job of “preparing the ground” at the beginning
of the educational process would likely have the benefit of obviating many of the
problems encountered later in the process. Without these measures, students cannot be
said to possess, nor can professors or universities be said to have conferred, whether
graduateness, educatedness, or preferredness.
Conclusion
Nietzsche was right: “When we have a why in life, we can bear with almost any
how.” The faculty must know, study, and follow the findings of the relevant research. If
it is true, as Cownie (1999a:51); (Cownie 1999b) points out, “that professional
knowledge is resistant to any substantial restructuring,” and that teaching habits and
paradigms are therefore resistant to reflection and change, and as Jenkins et al. (2003:124)
20
recognize as “blissful ignorance of the research evidence,” then departments must insist
that change be studied and made, consistent with the findings, as the key to advancement
and promotion. All education, including legal education, whether in its own right or as
adjunct to other programs, whether in or out of law school, is supposed to be like a
cathedral: never finished, forever under construction, never reaching stasis or closure, and
having many builders (Solomon 1992). Inasmuch as there is a ”paucity of scholarship
[that] is mirrored by a lack of curricular emphasis,” (Stipanowich 1998), particularly in
the context of the built environment, this is the challenge of curriculum design in the new
century. This challenge is particularly acute in the study of law by non-law students who
will nevertheless move into a professional world rife with law.
The questionnaire respondents and Socratic discussants in this study cited the
need for greater detail, more case studies, more analysis, more examples and illustrations
to aid their understanding—in other words, more depth, less breadth, with more
comparisons to the law of other jurisdictions. All of this presents a significant challenge
to an already overburdened and time-challenged curriculum and faculty that have yet to
theorize thoroughly what it is attempting—and should attempt—to do. Wordsworth
(1974:588) wrote: “…we to them will speak…what we have loved, Others will love, and
we will teach them how….” But Wordsworth’s dictum, as this study shows, cuts two
ways. “We” may teach “them” the law and the rule of law that we love, but perhaps we
may no longer teach them by the same means that we loved. For both students and
teachers, Professor Llewellyn’s (1951:105-06) dictum remains true: “no cure for law but
more law.” The difference today from Llewellyn’s day is that he was advocating
traditional, “pure” black-letter law. The new century demands that and so much more.
21
APPENDIX
A.
The Questionnaire: Undergraduate and Postgraduate Students
The purpose of this questionnaire is to discover what you truly think of your study
of the law, as part of your BRE major, so far in your studies. The questionnaire is
anonymous and voluntary—it has no bearing on your mark for this class. The results will
be used to assist the Department in designing the best possible programme.
1. In my opinion, the requirement of mandatory study of legal subjects as part of the
BRE curriculum is—
Excellent
Good
Fair
Poor
Useless
2. The reason for my answer to question no. 1 above is—
3. If I could make any changes to the mandatory programme of law study, the changes
would be—
4. With regard to my future work in my profession, I think the study of law is—
Relevant
Somewhat Relevant
5. The reason for my answer to question no. 4 above is—
22
Irrelevant
B.
The Questionnaire: Practicing Professionals
The purpose of this questionnaire is to discover what you truly think of your study
of the law, as part of your BRE major when you were at university. The questionnaire is
anonymous and voluntary. The results will be used to assist the university in designing
the best possible programme for present and future students.
1. In my opinion, the requirement of mandatory study of legal subjects as part of the
BRE curriculum is—
Excellent
Good
Fair
Poor
Useless
2. The reason for my answer to question no. 1 above is—
3. If I could make any changes to the mandatory programme of law study, the changes
would be—
4. With regard to my present work in my profession, I think the study of law is—
Relevant
Somewhat Relevant
Irrelevant
5. The reason for my answer to question no. 4 above is—
6. Can you recite any specific example of when your legal training has helped you avoid,
mitigate, or settle a legal problem or a lawsuit in the practice of your profession?
23
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