affiliated to the International Association of Constitutional Law
It was apparent from the session at the SLS Conference in Bristol last September, that there was a latent demand for a discussion about the teaching of Public Law. So with the help of the Public Law stream from the SLS, Javier Garcia Oliva, and Robert Thomas organised this innovative conference. The strong attendance of public lawyers from around the country, including visiting scholars from America and Australia showed the strength of this demand. This arose for numerous reasons, law schools are operating not only within a changing university landscape, but also within a fluid legal landscape. Changes to the regulatory framework of legal services and frequent changes to the provision of legal aid raise challenges for Public Law in practice, which in turn raise challenges for the teaching of Public Law. As the conference took place on the day that the final report from the Legal Education and Training Review was published, it was particularly well timed. As Dawn Oliver said, it was a rare event, as it is ‘not often that you get so many public lawyers together, never mind talking about teaching’.
Overview of Public Law in Academia Nowadays
(Prof. David Feldman, Prof. Dawn Oliver, Prof. Robert Thomas, Prof. Rodney Brazier)
Dawn Oliver faced the unenviable task of starting the conference, by tackling the question, ‘What is Public Law?’. The term ‘Public Law’ is itself a relatively new term in English Law; unlike other subjects that form the Qualifying Law Degree (‘QLD’) there is little agreement over the essential nature of the subject, and it remains quite a ‘young’ subject with many fundamentals still contested. So when defining Public Law, a pragmatic approach is taken, and it is taken to mean the law and soft law relating to the institutions of state and their relationship with the people. There is what Oliver described as a ‘mystery’ to this, which can be partially resolved through embracing public laws interdisciplinary nature. For example, much of what is taught as Constitutional Law can only be understood by considering the history behind the law. An advantage of retelling these historical stories behind the law is that they give students a pathway into the subject. Politics, anthropology and the behavioural sciences also have a role to play. Of course, not all of this can be achieved in the limited time that a Public Law course lasts, but the aim should be to show students that there are other ways at looking at Public Law, with lawyers not necessarily having the final word. Ultimately, there are often no ‘right’ answers in Public Law, and students need to know this. Making first year students comfortable with this uncertainty became a recurring theme of the conference.
David Feldman discussed the challenge of getting students, who know little about the law, constitutions, or international affairs, to understand that constitutions are not hermetically sealed. If the first constitution you are introduced to is the UK system, then that becomes the norm, whilst from an international perspective it remains a ‘rather peculiar system’. For example, students are introduced to EU law through the prism of the difficulties that EU membership causes for parliamentary sovereignty, when creating that controversy was far from the intention behind the original Treaty of Rome. Prof. Feldman argued for an alternative approach that began by introducing students to international law, and only then to regional and national law, to provide students with an overall framework. Students could then appreciate that all constitutions, whether international, the EU, or national, are under a state of ‘permanent negotiation’, pulling in several directions at once. Certainly this approach would help international students for whom learning the UK constitutional system can be like learning the wizardry behind Harry Potter!
Rodney Brazier described how the two elements of Constitutional Law and Administrative Law are approached under the (relatively) fresh banner of Public Law. The traditional model is for Constitutional Law to be taught first, with the basic rules explained, followed by Administrative Law, picking up where Constitutional Law left off. A typical balance would be 75% Constitutional Law, 25% Administrative Law, reflecting the need to expose the students to the basics of Administrative Law. This model also reflects the historical baggage of the development of Administrative Law, as it gained traction from the 1950’s and became attached to existing Constitutional Law courses. The development of Administrative Law has continued apace, but the danger is that when combined with Constitutional Law, the subject can be reduced to the principles of judicial review and little else. The question is how should teachers of Public Law strike the right balance?
The role of Public law within the broader law curriculum was discussed by Robert Thomas, who tackled the issue of how Public Law themes are carried through into later years. This is mainly achieved through options such as Social Security Law, the regulation of finance, Media Law, and Environmental Law. This is a reflection of the growth of Public Law across the rest of law. The core issue throughout a LLB is how to engage students with Public Law in a process of collaborative learning. The difficulty is that first year students know little about the law, and Public Law lacks the immediacy of subjects such as Criminal Law. Student engagement is important, as like the majority of subjects, the teaching and learning of Public Law needs not to be the mere transmission of facts regurgitated in exams but a process of collaborative learning, making this area of study intellectually challenging and exciting. The way to achieve this is to experiment and take risks.
Methods of Teaching and Assessing Public Law
(Prof. David Mead, Dr. Richard Kirkham, Dr. Mark Elliot, Dr. Fiona Donson)
In various ways, such experimentation and risk taking was addressed by the second panel. Experimentation through assessment methods was discussed by both Fiona Donson and David Mead. Exams are still the main form of assessment, with the advantage of being a one-point process, which is relatively appreciated by students. There is a trend towards coursework, which can overburden students, especially if those assessments are challenging and require significant research time to complete. If undertaken during term time, students may focus on the coursework at the expense of lectures and seminars. Rather than simply taking the form of an exam, the form of question set for the students provides scope for innovation. Problem questions and different types of essays, such as briefing notes, can combine assessment with the acquisition of legal skills. For example, students can be asked to provide a briefing note to the Prime Minister on a problem question dealing with ministerial responsibility. Students apparently ‘hate’ this, but this could be an indication of being pushed outside of their comfort zones. David Mead discussed his experience of multiple-choice exams. The main advantage is that it can split the different aims of the course into different assessments. A multiple-choice exam can test knowledge and understanding, whilst a traditional exam tests how a student can apply that knowledge. The challenge was to construct an exam which was sufficiently rigorous, with a range of questions that tested wider reading and topical issues, in a way that generated a spread of results. It took two or three days to construct a 40 question exam.
A distinctive, and attractive feature of Public Law is its topicality. In Public Law, events occur which go far beyond the ordinary academic discourse, and are subject to media interest and public debate. As Mark Elliot states, these events can change the subject in a radical way that may not be the case in other subjects. This reflects the uncertainty of Public Law as a subject. A consequence of this is an ever-increasing amount of material and lengthening case-lists for students to plough through. The challenge for a teacher of Public Law is to make this topicality a ‘blessing’ rather than a ‘curse’. Essentially, topicality needs to be curated and incorporated into the rest of the module, which does not sacrifice the fundamentals for the latest case or article. This means that, ‘less can be more’, especially as Public Law is usually a first year subject. Naturally, we all use the latest developments to illustrate concepts, but could this be taken further, and design a Public Law course around a few case studies as a vehicle to deliver understanding? This could be a shift away from the traditional linear structure which belies the interconnectedness of Public Law. The true value in dealing with topical issues, is that student interest increases when the course is related to current issues.
Related to topicality is new media. Richard Kirkham described how new media can make Public Law more accessible to students. Here, the role of new media is to complement traditional sources such as textbooks and has the advantage of exposing students to primary sources from the outset. One of the most effective ways of teaching issues such as the Scottish independence referendum, is for students to access and discuss the official documents available on the internet. Blogs can be useful as they provide a new twist on an old story with links to academic literature. Clearly, the quality of blogs varies enormously so there is a need to be selective, but there are many excellent blogs dedicated to aspects of Public Law. Podcasting lectures can be useful, and does not necessarily bring with it a marked reduction in attendance. As with topicality, the difficulty is in curating the material, but explaining the choices made can show the rationale behind the course to students.
Relationship Between Teaching and Research in Public Law – Research-led Teaching
(Prof. Andrew Le Sueur, Prof. Kathryn Hollingsworth, Prof. Neville Harris, Dr. Nick Barber)
The final piece of the jigsaw is to get students engaged with research, exposing students to the big issues within Public Law, allowing them to develop their own stance within these key debates. As Kathryn Hollingsworth stated, to do this we need to encourage students to think like scholars. The first way in which this can be achieved is to expose students to our own research. It can inform module design, although it has to be recognised that there are limitations teaching first-year students. A valuable way of doing this is to use our research to develop advanced modules that build upon our research, in Public Law fields such as Immigration Law, Labour Law, or Media Law.
Neville Harris suggests the other way is to get students involved in conducting their own research. This is another way of achieving active rather than passive learning. In this way students understand why research is approached like it is, as students are placed into the mind of the researcher. Public Law is an area which is particularly conducive to this, as it is an area of law with considerable social relevance, which has an impact on individuals and communities. This can be achieved through law clinics, with students sitting in on case interviews, researching the relevant law and then producing a briefing or a report. In doing this, students observe the impact of law in the community, with their research being fed into campaign groups in that field and area. Such law clinic involvement can be viewed negatively, with arguments that it puts pedagogy over the needs of the community who require qualified lawyers rather than students, and that it can lead to students thinking about clients in instrumental terms. However, this is a minority view, as the exposure to real world issues allows students need to appreciate the social usefulness of the law.
This type of law clinic involvement is generally an extracurricular activity, and sits well with other activities of mooting and negotiation competitions. However, Andrew Le Sueur provided an example of a similar form of engagement that was integrated into the Public Law module. He asked his students to produce a submission to the Joint Committee on the Draft House of Lords Reform Bill. He then sent a selection of first-class answers to the Committee which were then published as written evidence [see http://www.publications.parliament.uk/pa/jt201012/jtselect/jtdraftref/284/284iii.pdf]. Another suggestion was the rather counterintuitive idea of a blank reading list. Without any guidance as to what to read for a particular topic, students are asked ‘what would you regard as the most important pieces of academic literature relating to X?’. This is a clever idea for it forces students not only to acquire the literature but also to evaluate it and appreciate the amount of weight to given to the literature.
Nick Barber raised some broader questions, arguing that we need to think about what students get from a Law degree and from Public Law especially. He boiled it down to three elements, a through understanding of the law, the capacity to adopt a critical view of the law, and the ability to express creative ideas. We enable the students to achieve the first element well. Students readily gain a broad outline of the law and acquire the tools to learn more, and filling in the details when they need to. The second two objectives are achieved only to a lesser extent. Students need to adopt a more critical view of the law and challenge it, so that in future they can do this in court, or, if they become involved in the development of the law, are able to propose remedies for the inadequacies of the law when it is unsatisfactory. Both of these require the final element, the ability to express creative ideas. Law is an art as well as a science, but often academics would rather be dull and correct than wrong and interesting. In this way, Barber brought the conference full circle, because to achieve this, you need the interdisciplinary approach as discussed by Oliver. In particular, students (and academics) need to learn the tools of moral reasoning from political theory and philosophy. There is also a need to evaluate the facts and evidence, asking the question, does the law achieve what it sets out to achieve? Statistical analysis can be useful tool here, but to most lawyers, this is a whole new world of inquiry, as lawyers and numbers are not natural bedfellows. There needs to be an awareness of sample size, significance and percentage changes, but lawyers are not trained for empirical study. Public Law is closely linked to issues that lend themselves to empirical study, for example the question as to whether judges are susceptible to ‘group-think’ is a question of social psychology as well as law. At the very least, students need to know what they don’t know. This was an excellent denouement to the conference by weaving the two consistent threads of the conference together, the inherent uncertainty within Public Law and the interdisciplinary nature of the subject.
There is a great interest and enthusiasm in the teaching of public law, and as David Feldman states it is healthy to think about such things in a constructive way. The subject has evolved in a positive direction were there is now much more of an interchange between academia, practitioners judges and Parliament. This vibrancy of thought into Public Law teaching is to be very much welcomed. The issue is how do things develop from here to capitalise on this momentum?
A special thanks should go to OUP for their partial funding of the conference, and Robert Thomas and Javier Oliva Garcia for organising the conference. Also, thank you to David Feldman, John Stanton and Ann Lyon from the SLS Public Stream for their continuing support. Finally, thank you to all speakers and participants for a rewarding, enjoyable event that left those attending with plenty of things to ponder.
Craig Prescott is a Teaching Assistant and Ph.D student at the School of Law, University of Manchester.
Suggested citation: C. Prescott, ‘Interdisciplinary Uncertainty’ – A Report from Conference on the Teaching of Public Law’ UK Const. L. Blog (2nd July 2013) (available at http://ukconstitutionallaw.org)