Beyond text in legal education

In this article from the Autumn 2009 issue of Directions Zenon Bankowski and Maksymilian Del Mar report on one of the projects funded under the AHRC’s Beyond Text programme, focusing on the values and experiences uncovered by the process of moving beyond text in law and legal education.

Zenon Bankowski is is professor of legal theory at the School of Law, University of Edinburgh. Maksymilian Del Mar has recently completed his PhD at Edinburgh and now teaches at the University of Lausanne.

Note: blog reports on the June 2009 Beyond text workshop are available from hEaD space and Zeugma (day 1 | day 2). The Beyond text team also presented a paper at Learning in Law Annual Conference 2009 – see the session report.

Beyond Text was created in 2007 by the Arts and Humanities Research Council as a strategic programme to bring together academics and professionals with practitioners in the arts and creative industries to explore how human communication is articulated through sound, sight and associated sensory perceptions. The programme is intended to inform and inflect public policy relating to our cultural and creative heritages and futures, and to help inform educational practice at a time when traditional notions of literacy are being challenged by advances in communications technology.

When people view art objects in galleries too often they rely on textual explanation, looking for the text in the catalogue to explain it and not letting the object explain itself. Some curators try to get people to engage the art object without text, to use their imagination to let the object speak to them and not be subsumed by the text. Lawyers face an analogous situation when they encounter events that need decision – too often they look to the text and do not experience the particularity of the situation by letting it speak for itself.

Law is very much a text-based discipline, both in its practice and its education. Thus legal education, both at the tertiary and continuing professional level, has been and continues to be dominated by recourse to textual resources. Law students and legal professionals are taught to learn and understand general rules and principles and to apply them to previously manufactured factual scenarios. This is no different when it comes to the education of legal professional ethics – moral theories are presented as consisting of general axioms that allow students and professionals to rationally resolve traditional problem cases (pre-articulated factual scenarios that are designed to produce moral dilemmas).

There is no doubt that the development and use of text-based resources allows for the exercise of skills that are important to the ethical development of law students and legal professionals – learning how to better articulate and justify one’s reasoning by reference to complex systems of normative language is important. However, the exclusive emphasis on textual resources, on languages and their manipulation, carries with it significant dangers. Such an exclusive focus can be restrictive in that it can result in law students and legal professionals never acquiring, or at least diminishing, the skill of coming to see and recognise the ethical complexity of any given situation. It places at risk their ability to overcome the limitation of the categories with which they are working, particularly when the particular situation itself puts into question the categories that are supposed to deal with it.

All of these considerations led us to develop a project, Beyond text in legal education. The text-based nature of law is both its strength and its weakness. It is its strength in that it enables decisions to be transparent and constrained by the text; it is its weakness in that decisions tend to be dominated by text, and situations are shoehorned into the text with stultifying results. The answer is always sought within the text, viewing the situations law encounters through the optic of the text and thus manipulating them rather than transforming them, and not letting the situation speak to the text and the law. Coping with the limit of the text requires the exercise of ethical imagination. Such an exercise enables the person to respond to the complexity and particularity of the situation, and to come up with just and imaginative ways of going forward. Our project aims to promote the ethical imagination needed at these moments.

We have developed two concepts that we think can help develop and nourish this ethical imagination – ‘attention’ and ‘encounter’. Attention has both a passive and an active component. In its passive dimension, attention refers both to the capacity and willingness to let an object come to you, and not to seek to dominate or manipulate the object. In its active dimension, attention requires you to broaden the inevitable limitations of what you tend to pay attention to, and thus also what you tend to value. Encounter, which is closely related to attention, refers to the capacity and willingness to experience the presence (including the physical presence), and also needs, of another human being, without the usual filters and distractions of professional and everyday life. Inspiration for the concept of attention includes the work of Simone Weil, Iris Murdoch and Lawrence Blum. Inspiration for the concept of encounter includes the work of Martin Buber, Emmanuel Levinas and Raimond Gaita.

The centrepiece of our project was an experiential workshop, held in Edinburgh in December 2008, which was led by an artist, a curator and a movement artist. There were some 15 participants, including lawyers in private practice (some of whom were professional development directors of large firms), advocates, legal educators and academics (both from the UK and the US). Over two days we took part in a set of activities, designed to trigger and develop the imagination which we thought was necessary to creatively interact with text and to be able to transform it without destroying it. Experiencing the activities was vital, as we believe that we learn most effectively with our bodies in specific environments (and particularly in atmospheres where play and experimentation is not only allowed, but also encouraged).

The final event of the project was a two day workshop, held in Edinburgh in June 2009, which consisted of the participants in the experiential workshop and others. This workshop had two aims – first, to look at some of the issues raised by the concepts of attention and encounter, and second, to reflect on the activities in the experiential workshop. With respect to the second aim, our principal task was to consider what worked, how it might be tested, and how we might bring what did work to bear on the practical activity of educating lawyers in the academy and in practice.

Apart from the workshops our project outputs include a film (WMV file) and a collection of essays (currently in preparation). We also aim to provide a webpage with relevant resources, especially descriptions of the activities and instructions for how to introduce them into the workplace or the classroom.

Last Modified: 9 July 2010