Contingency and contested narrative: a threshold concept in legal education

The idea of threshold concepts was introduced to Directions by Julian Webb in the Autumn 2008 issue; they were also the subject of a workshop at Learning in Law Annual Conference 10. In this feature Claire McDiarmid and Elaine Webster continue the discussion by arguing that the contingency of law, particularly as expressed through the form of ‘contested narrative’ should be considered a useful threshold concept for legal learning, and explain why such threshold concepts matter in a discipline context.

Dr Claire McDiarmid is a senior lecturer and Dr Elaine Webster a lecturer in the Law School at the University of Strathclyde.

We understand a threshold concept as being a foundational feature of a discipline, mastery of which allows students to progress. The student can be seen as achieving a paradigm shift in the way in which s/he approaches and understands the discipline as a whole and the way in which s/he integrates previously acquired knowledge. In the context of legal education, it is helpful to view this progression metaphorically as a gateway, or bridge, allowing students to move from a general view of law as a set of factual statements to the perspective of a legal professional (whether academic or practitioner). A threshold concept is described by Meyer and Land as ‘akin to a portal, opening up a new and previously inaccessible way of thinking about something.’ (Meyer and Land 2003: 412). Such a concept is seen to typically possess a number of characteristics, including transformative potential (of ‘subject matter, subject landscape or even world view’), and ‘troublesomeness’ (Meyer and Land 2003: 412).

The threshold concept which we wish to delineate here constitutes an overarching approach to law. Once a student has moved through it, it will likely “transform” the base from which s/he engages with the discipline. It is our contention that statements, or principles, of law – which are treated as truisms and which are often regarded as its building blocks – must be recognised by students as being contingent: their impact is conditional upon context and their meaning is pliable, whether they are deployed in “traditional” legal adversarialism or form the basis of theoretical work. Such statements point towards possibilities rather than given outcomes. Crossing the threshold allows student to recognise simultaneously law’s certainty – a quality which its continued credibility requires it to possess – alongside its essential malleability. It is this recognition (of contingency), and the understanding to which it gives students access, which constitutes our embodiment of a threshold concept in law. We build into our exposition the idea of law as a contested narrative and survey some of the implications of this view.

Contingency and contested narrative

In teaching ‘the law’ on a particular area, we often reduce it to a set of “clear” and “simplified” statements. Thus, for example:

• A contract requires consensus or a meeting of the minds
• The mens rea of murder is wicked intention to kill or wicked recklessness
• It is unlawful for a public authority to act in a way that is incompatible with a Convention right

It may be possible to learn by rote the basic statements of law identified above. Students start from this “knowledge” but should move from this basic understanding to a deeper conceptualisation of the multiple meanings which could be attached to the deceptively simple statement of the principle, particularly as those meanings are manipulated in and by the adversarial context. Thus, students may seek to argue that the received understanding of a particular statement is incorrect by, for example, presenting an alternative interpretation of previous case-law. Having crossed that threshold, they might manipulate the statement to advance their own standpoint – that the meaning to be attached to “wicked intention to kill”, for instance, is variable, heavily dependent on context and, to that extent, much vaguer than the basic statement of legal principle might suggest.

We suggest that students must come to understand the idea of the contingency of statements of law if they are to grasp the nature of law as a discipline. Otherwise, they may be limited to a practice of ‘mimicry’ (see Meyer and Land 2003: 422). Grasping this idea can further expose students to the potentially discomfiting idea that law is fundamentally characterised by, and concerned with, contested narrative – i.e. that it is of the nature of law that its statements are constantly subject to challenge. Gewirtz, referring to a legal trial, portrays well this manifestation of contested narrative:

one side’s narrative is constantly being met by the other side’s counter narrative […], so that “reality” is always disassembled into multiple, conflicting and partly overlapping versions, each version presented as true, each fighting to be declared “what really happened” – with very high stakes riding on that ultimate declaration.

— Gewirtz 1996: 8; see also Brooks 1996

Viewed thus, it is clear that law is always subject to the interpretation of its user, (which is instrumental rather than passive and descriptive) and the context in which s/he seeks to use it, including the factual situation in which it is to be embedded. Notwithstanding the difficult questions that may follow from asserting that law is contested narrative (e.g. the implication that law is ‘only’ narrative; see Baron and Epstein 1997), this basic descriptive portrayal of law seems not to be contentious. Baron and Epstein describe narrative as an ‘enterprise that encompasses the recounting […] and receiving […] of stories.’ (1997: 147). This captures the outworking of law on multiple levels.Judicial opinions, academic debate, witness evidence, or court pleadings by counsel all, to some extent, “tell” the law for their own purposes. This fundamental uncertainty over what “the law” is – an issue which had hitherto been regarded as certain and definable – may indeed be conceptually difficult for students. Consequently, they may experience this turning point as challenging and it may give rise to further unsettling realisations.

Trouble and transformation

We argue that this concept of the contingency of law possesses the major characteristics of threshold concepts as developed in the educational literature. Such concepts are often “troublesome” due to the shift in perception that they entail (see discussion of Perkins’ understanding of the nature of troublesome knowledge in Meyer and Land 2003). Our threshold concept might disrupt students’ perceptions of law on multiple levels, including their understanding of the relationship between law and justice, particularly if law was initially perceived as an edifice – a set of certain and readily identifiable rules with definite and accepted meanings. Knowledge of the contingency of statements of law might indeed be counter-intuitive (Meyer and Land 2003). For students, it may contain a seeming contradiction.

Students might come to understand law as a normative institution shaped by actors within the law, after which it is impossible to view one’s role as an interpreter of law as the exercise of pre-determined, mechanical application of rules. Brooks reminds us that ‘storytelling is a moral chameleon’ (1996: 16). This points towards a significant characteristic of threshold concepts – their (normally irreversible) transformative nature (Meyer and Land 2003).

Summing up

The promise of the threshold concept model in disciplinary education lies in presenting an alternative point of departure for reflecting upon and refining teaching, learning and assessment practices. It provides a focal point for helping students to cast off or reconcile pre-existing perceptions that may act as obstacles to their progress. The model potentially has implications for all areas of course design (see Miffendorf and Pace 2004 on teaching methods; also Land, Cousin, Meyer and Davies 2005 on implications for course content). A further, and particularly valuable feature of the model is its emphasis on learning as a transformative journey (see Meyer and Land 2003), which is encouraging for both educators and students in its normalisation of the challenging nature of higher education. Moreover, approaching course design and teaching methods through the lens of how students, both descriptively and normatively, come to interpret and apply statements of law, whether in a practical or a theoretical context, is potentially a valuable approach that could help us highlight what is fundamentally important in legal education.

References

• Baron, J. B. and Epstein, J. (1997), ‘Is Law Narrative?’, in Buffalo Law Review, 45, 141-188.
• Brooks, P. (1996), ‘The Law as Narrative and Rhetoric’, in P. Brooks and P. Gewirtz (eds.), Law’s Stories: Narrative and Rhetoric in the Law (New Haven: Yale University Press), 14-22.
• Gewirtz, P. (1996), ‘Narrative and Rhetoric in the Law’, in P. Brooks and P. Gewirtz (eds.), Law’s Stories: Narrative and Rhetoric in the Law (New Haven: Yale University Press), 2-13.
• Land, R., Cousin, G., Meyer J.H.F., and Davies, P. (2005), ‘Threshold Concepts and Troublesome Knowledge (3): Implications for Course Design and Evaluation’, in C. Rust (ed.), Improving Student Learning: Diversity and Inclusivity (Oxford: Oxford Centre for Staff and Leaning Development), 53-64.
• Meyer, J.H.F. and Land, R. (2003), ‘Threshold Concepts and Troublesome Knowledge (1): Linkages to Ways of Thinking and Practising’, in C. Rust (ed.), Improving Student Learning: Ten Years On (Oxford: Oxford Centre for Staff and Leaning Development), 412-424.
• Miffendorf, J. and Pace, D. (2004), ‘Decoding the Disciplines: A Model for Helping Students Learn Disciplinary Ways of Thinking’, in New Directions for Teaching and Learning, 98, 1-12.

Last Modified: 9 June 2010