Using narrative and clinical approaches to teach ethics

In this section of his guide to teaching legal ethics Alwyn Jones (De Montfort University) discusses the use of clinic and narrative as teaching methods for legal ethics, highlighting the potential outcomes for students through reflection.

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A number of arguments are in favour of narrative and clinic-based approaches to teaching legal ethics. An obvious argument is that clinic is an effective way for students to learn the content and technique of dealing with ethical problems:

“Ethical decision making, problem solving and problem avoidance are each best learned by examining actual situations and the conduct of actors who are real people.”

— Noonan & Painter 2001: foreword vi

A second justification for this approach is that students will engage in a more personal way:

“Our objective is to teach students to think about ethics proactively rather than reactively. After reading the cases, students should ask ‘what would I have done in this situation?’ or ‘how could this problem have been avoided?’, not merely ‘should the lawyer in this case be sanctioned?’ and ‘what is the rule here?’”

— Noonan & Painter 2001: foreword vi

One of the limitations of clinic for learning ethics is that it tends to be a reactive process – students only learn ethical principles when they arise, or when the student advisers and/or supervisors realise they have arisen. Some ethical issues arise in every case, at least at some level, such as confidentiality, the duty to check that there is no conflict of interest, and the duty of competence. It can also be argued that, whenever there is a lawyer-client relationship (or student legal adviser-client relationship) issues of autonomy and of ‘lawyer control’ or ‘client control’ arise. (The large literature on autonomy issues in lawyer-client relationships includes classic works such as Luban 1981, Pepper 1986 and Luban 1986, and empirical work such as Sherr 2000). However, students’ learning is limited by the issues that are presented to them and by their (and their supervisors’) ability to detect and make space to discuss ethical issues when they do arise.

An alternative is to present realistic (or real, but past rather than current) problems involving ethics. James Kelley of Georgetown University is one of a number of law teachers who engage students in ethics using the stories of real life cases. This is his justification:

“Why tell stories to students of professional responsibility? Of course, there is nothing wrong with making a law school class interesting for the students. More important, principles of legal ethics are more effectively conveyed, and more likely to be remembered, when narratives of real events supplement traditional casebooks.”

— Kelley 2001

Miller has argued that it is desirable for law teachers to move beyond the traditional ‘doctrine driven’ approach to narrative, in which the facts of such stories are broken up into specific potential crimes (or other legal categories). Rather than a hierarchical, top-down approach Miller advocates a deeper vision, using the image of geological strata to propose that law teachers go beyond the surface (traditional approach) to a vision of case theory which “becomes a vehicle for communicating the client’s story and meshing his story with those of the other participants”, starting with the stories and working the law back in (Miller 2005: 173).

The assessment of clinic is often conducted through written reflection on the clinical experience (Maughan & Webb 2005; Hinett 2002). Reflection in the context of a clinic course with an ethics component can present law students with an opportunity to connect any ethical theory included in their clinical learning with their lived experience. In particular, reflective writing can give students the opportunity of demonstrating that they have achieved some of the otherwise intangible goals that may be included in ethics teaching.

Students may be able to demonstrate a range of outcomes in their reflections:

• that they have developed ethical sensitivity (the ability to detect ethical choices and articulate the issues from an ethical standpoint)
• that they can evaluate their responses to ethical choices, demonstrating a capacity to take responsibility for their conduct and decisions
• how their relationships with clients, other students and teachers forms part of their ongoing choice of values and the construction of their identities as human beings and professionals
• that they can identify the ways in which socialisation has influenced the way they react and think
• evidence of the capacity to think independently and resist conformity

Law teachers may wish to structure students’ reflection on clinical experience in different ways. Theoretical bases for student reflection on ethics in clinic could include the well known theories of moral development by theorists such as Piaget and Kohlberg (Piaget 1960, Beck 1971 and the works cited by Nicolson 2005: 608), as well as the literature on their work (for example Lickona 1975, Duska & Whelan 1977). Kohlberg’s stages of moral development (as summarised by Marsh & Stafford 1988) are given below:

Pre-conventional level:

• Stage 1: Avoidance of punishment and unquestioning obedience to superiors are valued.
• Stage 2: Right action consists of that which instrumentally satisfies one’s own needs and occasionally the needs of others (instrumentalist relativist orientation).

Conventional level:

• Stage 3: Good behaviour is that which pleases or helps others and is approved by them (interpersonal concordance orientation).
• Stage 4: Authority, fixed rules and the maintenance of the social order are values.

Post-conventional level:

• Stage 5: Values agreed upon by the society, including individual rights, determine what is right.
• Stage 6: Right is defined by one’s conscience in accordance with self-chosen ethical principles (universal principle orientation.)
  For example, students may identify in themselves what Piaget described as ‘cognitive disequilibrium’, a state of uncertainty in a person’s views and a loss of confidence in the strength of that person’s views having been challenged by someone who draws different conclusions, leading to a search for more knowledge and a better process of reasoning (Maughan and Webb 2005: 87).

Last Modified: 30 June 2010