Beyond text in legal education

In their paper Zenon Bankowski (University of Edinburgh) and Alicja Rogalska gave an overview of and involved participants in activities based around the Beyond text in legal education project.

The session was blogged on Digital Directions and Zeugma. An article about the project also appeared in the Autumn 2009 issue of Directions.

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 pre-manufactured factual scenarios. It 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). The pursuit of professional integrity is dominated by promoting the ability to use complex systems of ethical postulates to justify the making of a certain decision in relation to a pre-determined set of facts.

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 – we acknowledge that learning how better to articulate and justify one’s reasoning by reference to complex systems of normative languages 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 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 situation itself puts into question the categories that are supposed to deal with it. Coping with this limit requires the exercise of the 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.

There is a considerable amount of work in this context that has been and continues to be conducted by those who emphasise the value of the ‘literary imagination’ and the use of literature for these purposes. Our view is that while the invocation of the literary imagination in this context is important, it is still too heavily text-based. What we want to do is to create a space where the ethical imagination can be inculcated and the movement beyond can be experienced in non-textual ways. We want to create a space where there will be opportunities for learning ’through the body’, and thereby to investigate the unique kind of knowledge (known in the literature as ‘embodied knowledge’) that may emerge from this improvisatory practice.

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.

The Beyond text in legal education project aims to promote the ethical imagination needed at the moment when law and lawyers encounter these situations, when they reach the limits of the text. We aim, in experiential workshops led by artists, dancers and curators, to develop non-textually the skills that will enable lawyers to experience the vulnerability of the situation and allow it to speak and help them move beyond the law by transforming it but not destroying it.

An analogy might be helpful – 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, to experience the art objects through other means.

Mark Davys (Keele University) reports:

Zenon and Alicja gave a short theoretical and methodological introduction to the project, and then showed a film of a project workshop which took place in Edinburgh in December 2008. Participants included academics and practising lawyers from the UK and the USA.
 
Being able to watch (rather than just listen to or read about) the activities making up the workshop clearly engaged those attending, even if some of us, like at least one participant in the workshop, found it difficult to fully assimilate the profound issues raised.
 
Perhaps the main concern during questions was the issue of the transferability of the learning gained from experiences of this type into the text obsessed world of the office or the academy.
 
As I reflected on this paper and the other paper in the session, Cultivating lawyers: education or inculcation, I was struck by the fact that I had already begun exploring both themes – albeit in my guise of a Church of England clergyman (some parts of the Christian church are even more text-based than the law) rather than as a teacher of law.
 
I do, however, remember getting very positive feedback from a small group of students whom I had asked to make a visual (rather than textual) illustration of a legal concept (mortgages or easements, I think it was). However, I fear that such an exercise was more about helping students engage with a textual construct than being true embodied learning.
 
When pushed, I find myself echoing the concern of one of the participants in the film of the workshop. The real problem is not so much helping (undergraduate) students move beyond the text, but enabling them to move into it in the first place – but then again, perhaps embodied learning should be our way into text, rather than our path beyond it?

About the presenters

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Zenon Bankowski is is professor of legal theory at the School of Law, University of Edinburgh, and the author of Living lawfully (Kluwer, 2001).
 
Alicja Rogalska is a socially engaged artist, photographer and cultural animator based in Birmingham. She read cultural anthropology at the University of Warsaw and often employs ethnographic and academic research techniques in her practice. Alicja enjoys the challenge of working in everyday situations and new environments where the role of art and the artist is not specified, and is also interested in using art to prompt creative thinking in all areas of human activity.

Last Modified: 9 July 2010