Association of Law Teachers
45th Annual Conference
Legal Education: Making a Difference
THIS IS AN OUTLINE OF THE FULL PAPER.1
Really Real Real Property
The Third Reality:
An Empirical Approach to Abstraction in the Law
“Most students encountering real property law for the first time go through a
period of almost total mystification. What they assumed to be a solid,
immoveable asset speedily dissolves into abstract tenures and estates,
stretched out over an infinity of time, susceptible to peculiar rules and
altogether beyond the plane of normal human existence.”2
“I must admit I struggled with land in the beginning, particularly with
regard to the terminology and concepts, but once I began to see them,
things started to click into place.”3
Louisa Dubery
Senior Lecturer in Property Law
The Law Department
The University of Winchester
1
This paper has been reduced from the full written paper. It is intended for preliminary interest, and
gives a broad outline of content and import, omitting the fully reasoned analyses.
2
Goode RM Commercial Law Penguin (1982), 49
3
LLB student (2007-2008)
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1. Introduction: The subject and its wider relevance.
Recent student texts suggest that real property`s notorious reputation as a difficult
and troublesome subject is diminished by recent legislative reform. First, this places
a confidence in statutory intervention belied by the history of real property law and
second, it risks defining and devaluing property study by its statutory boundaries.
Most importantly, however, it omits from consideration the extent to which problems
with property study reside not with the law itself but within the nature of the English
idea of real property. Legislative intervention alone will not transform the “ugly
duckling.” 4 This research explores a new approach to the property problem, based
on the notion of experiential connection. Experiential connection refers to the link
that exists in a subject between its legal reality and its lay reality; specifically, any
general consciousness of the subject that a student has before he comes to the legal
study of it. The paper examines whether experiential connection can provide the key
to property understanding and if so, how it can be developed into a model of property
pedagogy that is specifically aimed to overcome certain intractable characteristics in
the concept of property. These characteristics were identified in previous
foundational research and shown to have a significant adverse effect on the study of
property law.5
Whilst this paper is located in a specific legal context, the focus on the generic
notion of experiential connection means it is concerned with the wider question of
how students engage with abstract subject matter. This paper explores a hypothesis
relative to the property problem. If the hypothesis has validity, and if it is later
established as a general cultural, social or cognitive phenomenon, then property
could simply become the context in which it is applied.
2. Why this research? A summary of the foundational and continuing research
process.
Research into experiential connection as a model for revisiting the pedagogy of real
property is part of a continuing research project. It originated in a foundational study
that aimed to identify and understand real property law`s reputation, typically
described as “the horror story of a law degree.”6 This was important because the law
itself is not necessarily difficult; in fact it has an internal structure that facilitates study
and proprietary relationships offer greater conceptual and normative certainty than
personal ones.
4
Green K `There was Once an Ugly Duckling in Land Law 1985` (1985) 19 Law Teacher 65. Land
law is described as “the ugly duckling of a law degree.”
5
Dubery L `Restoring Real Property` (2008) 2 Web JCLI
6
Arden `Review of Cheshire`s Modern Law of Real Property (12th ed.)` 126 NLJ 933, 1
2
This section describes the background to this research: the foundational study and
three subsequent projects that resulted in the present hypothesis. These projects are
very briefly summarised below.
2.1 Restoring Real Property: An Enquiry Into the Property Condition of Higher
Education in England and Wales
The research began with an empirical study to ascertain particular facts about
property courses. It sought to discover how courses were run, by whom and their
content. It was particularly concerned with discovering if real property`s reputation
existed, and what it meant. The outcome suggested that the difficulties may lie more
with the distinctive attributes of English property, the fact that it exists as an idea,
than with the law itself. It was not evident that nay courses addressed this directly.
2.2 The Narrative of Pedagogic Property Discourse
If it is correct that the problem resides in the idea of property, the next step was to
examine how property`s existence as an idea has connected to pedagogy in a
broader context. This study was a textual examination on property discourse based
mainly on each of the three dominant texts in each generation, taking the watershed
of the modern period to be the 1925 legislation. 7 In particular the enquiry sought to
discover if there is a relationship between the idea of property and the normative
framework in which property writing takes place? If so, might these norms have
influenced the way pedagogy has developed? If so, how?
2.3 Is There a Black Hole in Blackacre?
The study of the textbook tradition suggested that because of the nature of English
property, the black letter method in academia has had a particularly important
influence.8 Although there is extensive literature reacting against this approach to
property law, 9 the questionnaire suggested that a rule based approach is prevalent.
This part of the research process comprised experience as part of a team at a
university which delivered a predominantly rule based course, and reflection on the
teaching and learning experience, intellectual enrichment and progression.
7
Cheshire GC Modern Law of Property (Butterworths, London,1925); Megarry RE A Manual of Real
Property (Sweet and Maxwell, London, 1946); and Gray K Elements (Butterworths, London, 1987)
8
An example to which the paper refers is Professor Rudden`s creation of a schematic representation
of Professor Lawson`s “world of pure ideas.” There is considerable intellectual rigour in this approach,
although Professor Rudden acknowledges it is “not attractive reading.” Rudden B `Notes Towards a
Grammar of Property` (1980) The Conveyancer and Property Lawyer 325.
9
A good example of the arguments is to be found in Harwood M `Is There Coherence or Logic in
Blackacre? A Plea to the Guardians of the Core` (1989) 13 Law Teacher 45
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2.4 Focusing on Property.
Rule based approaches tend to be characterised by autonomy in delivery as well as
in law, so this study sought to explore a converse approach. It aimed to establish a
working property pedagogy which evolved as much as possible through student
perspectives. It comprised focus groups of undergraduate and graduate property
students held in alternate weeks over one academic year. The objective was to
understand the student experience of learning property law, to discuss themes and
to formulate methods for the implementation of ideas which, following
implementation, were revised in feedback discussions.
3. Explaining the theme: “Experiential connection”
The need to address abstraction, and the concrete approach preferred by the
students, led to an interest in the idea of experiential connection as the basis for
revisiting property pedagogy.
Experiential connection may be described as the link between the student`s ordinary
life experience and the subject as it exists at law; the awareness, for example, that a
contract is an agreement. Such lay perceptions are rapidly subsumed by legal study,
but the idea of experiential connection itself remains critically important and deserves
further examination. It is highly effective in facilitating accessibility and engagement,
and therefore important in an area of law whose reputation affirms the enduring
elusiveness of those qualities. However, experiential connection from absent in real
property.10 It is atypical among legal concepts in that its legal idea bears no relation
whatsoever to its lay idea. The lay reality is a physical asset capable of ownership.
The legal reality is an abstract relationship existing in a fourth dimension defined by
heritability.11 These are the two realities of property.
4. The research question
This section explains why the lack of experiential connection in real property should
make it central in any pedagogic determinations about property. The research asks:
“Can creating an experiential connection provide the key to real property
understanding?”
Responses in the questionnaire on the condition of property reinforced this point eg “What most
people think they know about the law is wrong”; “contextually remote from students` lives.”
11 The classic definition is Professor Lawson`s: “[Real property law] is logical and orderly, its concepts
are perfectly defined, and they stand in well recognised relations to one another....So extreme are
these various characteristics that they make this part of the law something more logical and more
abstract than anything that to my knowledge can be found in any other law in the world....” Lawson FH
The Rational Strength of English Law (The Hamlyn Lectures 3rd ser., Littleton: Colombia, FB
Rothman, 1988) 33
10
4
Creating an experiential connection refers to the idea of developing a third reality
that connects the legal and lay realities: the building of a pedagogic landscape in
which to locate learning. Its objective is to discover whether and how students are
facilitated in the understanding abstract legal ideas through the lay notion of physical
representations, widely interpreted. It incorporates evaluation of different physical
representations as the basis for their more specific development and the ways in
which this can be used to encourage diverse skills. The section then goes on to
explain how this is an innovative approach capable of exploiting the richness of the
property phenomenon to benefit all aspects of the learning experience.
5. Critique of previous approaches to abstraction in property scholarship
This section summarises the main ways in which the dereification problem has been
addressed in property scholarship, and their defects. Examples are the moral,12
sociological13 or policy14 approaches.
6. The primary determinants: A property philosophy and the pedagogic goals
Problems arising from previous attempts at dereification highlight the need to ground
property discourse in a rigorous methodological and epistemological philosophy. 15
This paper establishes an orthodox model of enquiry; it draws only on ideas and
institutions that are particular to property, and excludes factors that exist beyond
specific property reasoning. This study is therefore concerned with the attributes that
have characterised English property for eight centuries, and it aims to achieve
outcomes that exploits the richness of the property phenomenon. This recognises
that recent judicial discourse has increasingly been concerned with property thinking,
with property as an idea.16
7. The pedagogic landscape and the continuing evaluation of its features
This section describes the different ways in which third reality has been built, and
evaluates student feedback. It asks question such as “Are some representative
Eg “[A] more explicit moral basis for the subject than is usually given.” Warrington R `Land Law and
Legal Education: Is there Any Justice or Morality in Blackacre?` (1984) 18 Law Teacher 77
13 Gray K and Symes DP Real Property and Real People: Principles of Land Law (Butterworths
London 1981)
14 The “land law as applied social policy....as applied economic policy”. McAuslan P “The Ideology of
Land Law Teaching` (1977) 2 No 4 University of Warwick Working Papers, 5,8.
15 Harris PJ and Buckle JD (1976) `Philosophies of the Law and the Law Teacher: A Re-Appraisal of
the Problems of Teaching Law` 10 Law Teacher 1
16
Examples of cases examining the legitimate parameters of relative proprietary entitlement are
Cobbe v Yeoman Row`s Management [2008] UKHL 55, [2008] 1 WLR 1752; Thorner v Major [2009]
UKHL 18; [2009] 1 WLR 776.
12
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forms means more effective for learning than others?”, “What skills does this
approach to learning encourage?”, “How can different representative forms be used
to develop different skills?”, “To what extent does efficacy of one form have
universality among different students?”, “What are the problems with this
approach?”, “Which forms do not work and why?”
8. Outcomes, Cracks and Proposals
This section explains the findings, their defects and proposes how the research
could be improved and developed.
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