Five go mad in Mindfield: applying behavioural science to legal education

The Phineas Gage Group

This paper introduced the UKCLE-funded project Applying behavioural science to legal education. The project team, aka the Phineas Gage Group, is made up of Chris Maguire (Bar Council), Hugh Brayne (University of Sunderland), Caroline Maughan (University of the West of England), Mike Maughan (University of Gloucestershire) and Julian Webb (University of Westminster).

What is it about a metal bar and a handful of displaced neo-cortex that has so excited five relatively serious, sensible and sometimes sober legal educationalists? Are they football hooligans? Or has the deadening grind of delivering they same old stuff in the same old way finally taken its toll? In part yes, it was certainly a spur to looking at other fields for inspiration, hooliganism included (what makes people behave in the way they do? Are some people more in touch with their evolutionary instincts than others?). But the catalyst was the story of what happened to Phineas Gage, the victim of the iron bar, and the extraordinary events following his loss of a good handful of neo-cortex together with his behaviour in the years afterwards.

This story was told at a conference a year ago, and helped the separate members of the group to identify a common interest in recent discoveries in the neurosciences (we use the term in a broad sense to include the debates on and discoveries in cognitive psychology, evolutionary psychology and neurophysiology). What implications do these discoveries have for educational research? What application might they have in the delivery of legal education? For example:

• What can neuroscience tell us about barriers to learning, why they are, what they are, how our discoveries can help us surmount those barriers?
• What does neuroscience tell us about non-traditional and non-intended forms of learning, and how we can use them?
• How can an increase in knowledge, for example the things that influence us through genetic inheritance or through exposure to childhood experience, increase our ability to choose learning styles that are relevant to our learners?
• What can neuroscience tell us about ourselves that we can use to shape teaching and learning environments which enable teachers and learners to take responsibility for the process of learning?
• Can neuroscience help shed light on the creation and nature of expertise and facility in performance?
• How does understanding how little choice we have move us towards having greater choice?
• What do we actually know that is beyond theories and baggage?

Over the next two years the Phineas Gage Group will explore these questions through investigating modern findings in neuroscience, and assess their potential impact on the delivery of legal education and learning.

Our primary objective is to create an interactive website through which we hope to raise awareness and interest about these issues among our colleagues in legal education, stimulate debate and, ultimately, encourage that the discoveries that the neurosciences have made into how we think, act, behave and learn may be applied to learning in legal education.

Where have our ideas come from?

We all possess a number of implicit theories about human nature, which influence our approach to learning and teaching. Although these theories are embedded in our day to day activities, we rarely examine their origins. What are the key themes in our cultural history which have influenced our view of human nature and consequently our approaches to learning and teaching?

Adam and Eve

A major influence on western thought and culture has been our Judeo-Christian heritage. This has given rise to a number of different theories which, even if we are not believers, have influenced the way we view the world. For example, the Bible tells us that man is made in the image of God and is therefore separate from other animals. Moreover it tells us that, although we are made in the image of God, we have inherited the tendency to sin from our earliest ancestors, Adam and Eve.

This notion of free will – that is, the God-given ability to make choices about how we behave – has of course significant implications for the way we have developed our legal system. The concept of the ‘mens rea’, for example, presupposes that a person has a choice about how he or she behaves, and that they have chosen to behave in an unlawful way and are capable of taking responsibility for it.

The blank slate

In contrast to this, and as a reaction to it, the 17th century thinker John Locke proposed a way of looking at human nature which we refer to as the ‘blank slate’. This view proposes a view of human nature which is entirely constructed by the relationship of the individual with his or her environment. This empiricist approach has been very influential, particularly in British and American intellectual circles.

More recently, in the latter half of the 19th and for most of the 20th centuries, the blank slate view underpinned the work of behaviourist psychologists, who suggested that our behaviour was no more than a set of responses to external stimuli. Indeed, as recently as 1974 Skinner wrote that studying the brain was just another misguided quest to find the causes of behaviour inside the organism rather than out in the world.

The study of sociology, developed through the later 19th and 20th centuries, and its successor, cultural studies, have also tended towards a blank slate approach. Durkheim, considered by many as the founder of sociology, wrote:

“ Every time that a social phenomenon is directly explained by a psychological phenomenon, we may be sure that the explanation is false…the group thinks, feels, and acts quite differently from the way in which members would were they isolated…If we begin with the individual in seeking to explain phenomena, we shall be able to understand nothing of what takes place in the group…Individual natures are merely the indeterminate material that the social factor molds and transforms. Their contribution consists exclusively in very general attitudes, in vague and consequently plastic predispositions.”

— (Durkheim, 1895/1962, pp103-106, cited in Pinker, 2002 pp23-24)

A great deal of this kind of thinking can be seen as a reaction to the eugenics movement and the cruel and damaging political and social consequences of such policies. This movement came to be known as social Darwinism. Herbert Spencer, one of Darwin’s pupils, saw evolution as a process of constant progress until it reached its highest achievement in the human being. In his view, white males were the most evolved of the human species. The eugenics movement, influenced by this notion of social Darwinism, through enforced sterilisations (in the USA) and the founding of contraception clinics to prevent the poor from over breeding (the Marie Stopes clinics in the UK) was attempting to give evolution a helping hand.

These views, in a variety of forms, have had an enormous influence on our views of what constitutes an ‘intelligent’ person. The IQ test in the UK was for many years the principal means of selecting students for one type of education rather than another. It was used in the USA to accept or bar immigrants (to avoid the ‘menace of the feeble minded’) and to select draftees for service in Vietnam. The popularity of the IQ test is witnessed in its current widespread use in American education, while IQ type tests, and guides on improving your score, are widely available here in UK.

These three intellectual threads, behaviourism, social constructionism and social Darwinism, have had a profound influence on educational policy and theories about learning and teaching. We may be seeing an example when tutors suggest to new law students that they needed to stop thinking in ways they had formally been used to thinking and start learning how to think like a lawyer.

Similarly, if you take an exercise as ordinary and straightforward as a legal problem in which there are two parties and where the student is asked to advise one of the parties, we can see the influences of behaviourism. That is to say that the stimulus of presenting a properly formed legal problem will elicit the response of applying the appropriate legal rules and knowledge to the situation so that the student will arrive at an appropriate solution. We might also see in this more than a hint of social contructionism; we enjoin our students to ignore their previous experience, because the ways in which they need to think and reach conclusions have already been developed (socially constructed by legal educators). It only remains for them to adopt this way of discoursing to become effective lawyers.

The noble savage vs the Leviathan

In the 18th century the French writer Rousseau developed the notion of the ‘noble savage’. He suggested that people in their primitive, original state were peaceable, unwarlike, healthy and contented. Rather reminiscent of Adam and Eve before the Fall in fact! War, poverty, hunger, oppression and misery were the consequences of civilisation.

Is this the view of the natural world that the ecological movement is propounding? Or the supporters of those alternative medicines which seek to restore the ‘whole person’ to an implied natural state of health?

Before Rousseau, the philosopher Hobbes had taken an opposite view, much more like the post-Fall view of mankind. He believed that, left to our own devices, humankind would give vent to greed and violence, and would subsist in a state of harmful chaos and warfare. “Hereby it is manifest, that during the time men live without a common Power to keep them all in awe, they are in that condition which is called War; and such a war, as is of every man, against every man&state of nature will return.’ (Hobbes, 1651/1957).

Order would only come about by each individual submitting to an overarching structure of authority, for which Hobbes used the metaphor of the biblical monster, Leviathan, which was subjugated by Yahweh. Leviathan may not have acted for the benefit of every individual, but created order and a degree of security for the majority of those who consented to submit to it.

It is not difficult to find examples of this way of thinking in notions like the rule of law. We can also see its influence in the cab rank rule, where public principles of fair representation require that the individual barrister puts aside personal beliefs and values in order to represent as effectively as possible the next client in the queue.

The ghost in the machine

The French mathematician and philosopher, Descartes, proposed a distinction between the body and the mind. The mind, he maintained, is indivisible, insubstantial and permanent. The body, on the other hand, is subject to the mind, is divisible into its component parts and is subject to the ravages of mortality. Where has this led? Can we see this dualism in the distinction between academic and vocational studies? Or in the conceptual separation of knowledge and behaviour in skills learning?

In the 20th century Freud believed he saw several ghosts in the machine. Indeed the whole thrust of psychoanalysis is to discover the nature of the ghost to see why and how it is damaging us.

More recently, writers on evolutionary psychology are attempting to understand the impact of our genetic inheritance on our mental and emotional processes. A variety of theories of the mind are being proposed and debated, based on current brain research and borrowing from a range of disciplines in the natural, behavioural and computer sciences.

What will influence our thinking over the next 100 years?

The Phineas Gage Group are putting our money (well, UKCLE’s money, actually) into researching the literature on the brain and the relationships between brain, mind and consciousness which are currently being carried out in the biological and behavioural sciences. As a group, we share an intuition that this scholarship will have important implications for learning and teaching. We don’t know for sure that this is the case, and we may well be barking up the wrong tree. Nevertheless, we think it will be worthwhile asking questions of modern scholarship about individual differences in capability, the value of educational interventions, and the importance and nature of unconscious learning. We shall review work on evolutionary psychology, neuroscience, educational theory, artificial intelligence and ethics. This will provide a basis for a re-examination of the law curriculum and its methodologies in the light of modern scholarship. The outcome of the project will be the setting up of a website which will be a resource, a discussion forum, a source of information and a link to other sites and resources.

References

• Locke J (1690/1947) An essay concerning human understanding New York: EP Dutton
• Skinner BF (1974) About behaviourism New York: Knopf
• Durkheim E (1895/1962) The rules of the sociological method Glencoe, Ill.: Free Press
• Pinker S (2002) The blank slate: the modern denial of human nature London: Allen Lane
• Rousseau JJ (1755/1994) Discourse upon the origin and foundation of inequality among mankind New York: OUP
• Hobbes T (1651/1957) Leviathan New York: OUP
• Descartes R (1641/1967) ‘Meditations on the first philosophy’ in R Popkin (ed) The philosophy of the 16th and 17th centuries New York: Free Press

Further reading

• Claxton G (1997) Hare brain tortoise mind (why intelligence increases when you think less) London: Fourth Estate
• Dennett D (1995) Darwin’s dangerous idea: evolution and the meanings of life London: Penguin
• Evans D (2001) Emotion: the science of sentiment Oxford: OUP
• Gardner H (1993) Frames of mind: the theory of multiple intelligences London: Fontana
• Greenfield S (1997) The human brain: a guided tour London: Phoenix (Orion Books)
• Le Doux J (1996) The emotional brain London: Phoenix (Orion Books)
• Le Doux J (2002) Synaptic self: how our brains become who we are London: Viking Penguin
• Pinker S (1997) How the mind works London: Allen Lane
• Pinker S (2002) The blank slate: the modern denial of human nature London: Allen Lane

Last Modified: 12 July 2010