Mullender

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Law, Undergraduates and the Tutorial

Richard Mullender*

First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

* Thanks are due to John Alder, Gordon Cairns, Richard Collier, Ian Dawson, Alison Dunn, Clare McGlynn, and Stan Taylor for their comments on earlier drafts of this piece. Thanks are also due to Michael Allen, Roger Brownsword, Lesley Dolding, David Howarth, Say Goo, Neil MacCormick and David Perrott for their views on various of the points set out below.

Summary

This article has three purposes. First, to point up some of the strengths of the tutorial as a teaching-cum-learning format for undergraduates. Secondly, to identify some pedagogic practices that can reasonably be regarded as promoting its effectiveness. Thirdly, to describe an alternative format that could preserve some of the tutorial's strengths while accommodating larger numbers of students.

Introduction

In the universities of the 1990s, the provision of tutorial-style small group teaching is becoming less generous (The Times Higher Education Supplement 1996, p 6). There are reasons for thinking that this reduction in provision will significantly impoverish the teaching-cum-learning environment of those undergraduates undertaking the study of law.(1) With the aim of explaining why this view can be taken, an effort will be made, in this discussion, to identify some of the tutorial's strengths.

The type of tutorial under discussion in this piece is that associated principally with the non-Oxbridge "old" university law departments and schools: i.e., a group comprising a tutor and (approximately) 5-8 students who meet on a regular (e.g., fortnightly) basis and discuss both (hypothetical) "problem" questions and matters of wider legal concern (which focus, inter alia, on law reform).(2) A number of the points made below are in line with views set out in the First Report of the Lord Chancellor's Advisory Committee on Legal Education and Training (ACLEC) (ACLEC 1996). Hence, points of intersection between the Advisory Committee's Report and the analysis here offered will be noted.

Prominent in this discussion is the theme that the tutorial provides a setting in which students can both gain insight into and develop a capacity to participate in the operations of the dynamic institution that is law.(3) An effort will also be made to identify means by which to promote the effectiveness of tutorial-style teaching. Finally, a teaching format will be described that can plausibly be regarded as preserving some of the tutorial's virtues while accommodating larger numbers of students. The identification of such formats can, moreover, be regarded as a pressing concern. This is because ours is an educational environment in which, inter alia, student numbers are rising far more rapidly than are the numbers of those who are engaged to teach them (The Times 1997, p 7).

Undergraduates, Law, and the Tutorial

(a) Product and Process

Undergraduate law students typically embark upon their studies with a product-focused understanding of their new discipline: i.e., an understanding which -

It is with an understanding of the sort described above that students usually begin their first tutorial. They usually discover, within minutes of its commencement, that the law they took to be open to ready application cannot be relied upon to yield clear, uncontroversial answers to the matters being discussed. As successive contributions to discussion throw up distinct interpretations of the relevant law, it is common to find students grappling uneasily with the realisation that theirs is a discipline in which it is dangerous to assume that presently-existing law provides ready answers to all disputes. The tutorial thus affords a means by which to promote understanding of the law's limitations. It also provides a setting in which students can be made aware of a variety of argumentative strategies that will enable them to cope effectively with their newly discovered difficulties. Moreover, it constitutes a context in which they can be encouraged to experiment with and develop facility in the use of such strategies. Tutorials can, hence, be regarded as providing a setting in which knowledge of legal product and its limitations can be supplemented with an understanding of legal process: i.e., the repertoire of argumentative strategies (or inputs) which make it possible to offer plausible (if not unquestionably correct) answers to legal problems.(4) Prominent among these strategies are the following:

It is, at this juncture, important to recognise that much of the tutorial's effectiveness as a teaching-cum-learning format derives from the use within it of what can be termed (following HLA Hart) "penumbral" problems (Hart 1958, p 615). In such problems, students are presented with fact-situations that cannot be readily subsumed under existing legal rules. Hence, they find themselves faced with the task of having to determine whether the law should be so modified as to comprehend the set of circumstances with which they are presented. Penumbral problems have long made up a substantial part of the law school's "daily diet" (Hart 1958, p 615). This, it seems reasonable to suggest, is precisely because they make plain the law's deficiencies and prompt recourse to argumentative strategies of the sort described above.

(b) The Tutorial as a Deconstructive Pedagogic Practice ⁽⁵⁾

On the assumption that the foregoing analysis is correct, a basis exists for suggesting that, in the use of penumbral problems in the tutorial context, we encounter a pedagogic practice that exhibits features that call to mind the practice of deconstruction: i.e., the activity of inverting the hierarchically structured relationship in which two concepts are conventionally regarded as standing relative to one another with a view to calling into question the legitimacy (or, at least, the adequacy) of the relevant conventionally accepted hierarchy (Balkin 1987, pp 746-751; Eagleton 1983, pp 132-134; Jabbari 1992, pp 512-515). Such a hierarchy can, it seems plausible to suggest, be found in the relationship between legal product (to which relatively high status is generally accorded) and legal process (to which relatively low status is usually assigned). While a full explanation as to why such a hierarchical relationship exists is beyond the compass of this piece, the beginnings of an explanation can be found in the consideration that legal product goes some way towards approximating the ideal of the rule of law. It is the law as 'laid down'.(6) As such, it can be regarded as being informed by the aim of satisfying some of the most basic requirements that must be met in order for a legal order to exist: e.g., promulgation (Fuller 1969, pp 49-51). By contrast, the concept of legal process is strongly associated with an activity that stands in an uneasy relationship with the rule of law: viz, the retrospective elaboration of the law by judges who find themselves convinced by argument put to them by counsel (Fuller 1969, p 51, et seq). This point can be illustrated by reference to the decision of the Court of Appeal in the case of R v Ministry of Defence, ex parte Smith and others [1996] 1 All ER 257. In Smith, the military's policy of discharging homosexual and lesbian service personnel was subjected to judicial review on, inter alia, the ground of unreasonableness. Counsel for three of the appellants, Mr David Pannick QC, advanced the argument that the test of unreasonableness (as it applies to the conduct of public officials and public bodies) should be applied with particular rigour when human rights are threatened (p 263). He did this notwithstanding the fact that no mention of human rights is to be found in the long-settled definition of unreasonableness set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, pp 233-234, per Lord Greene MR. Pannick's argument, nonetheless, won the approval of the then Master of the Rolls, Lord Bingham, who, in endorsing it, thereby elaborated the law (p 263).(7)

There are three reasons for taking the view that the tutorial provides, at least where penumbral problems are being discussed, a context in which the hierarchical relationship between product and process described above can be deconstructed. First, penumbral problems serve to point up the inadequacies of existing legal materials and, thus, call into question the privileged status of legal product. Secondly, legal process is identified as the means by which to make good the law's deficiencies. Thirdly, the message is thus conveyed to students that the generally accepted understanding of the hierarchical relationship in which product and process stand relative to one another is, at least in some circumstances, inadequate. In the light of this last and the foregoing points, the tutorial can be regarded as facilitating enculturation in a particular (i.e., legal) disciplinary community. This line of thought is pursued in more detail below.

Enculturation in a Disciplinary Community

In a recent essay by John Seely Brown and Paul Duguid (Seely Brown and Duguid 1996), three claims are made that are of relevance to this discussion: viz -

Before proceeding further, the work being done by the term 'enculturation' needs to be explained. It denotes a process the upshot of which is that students acquire insight into the purposes informing disciplinary communities and an ability to engage in the practices by means of which knowledge and understanding are developed within such communities. (8) This process is seen by Seely Brown and Duguid as having the effect of turning those students who benefit from it into "insiders": i.e., persons who possess knowledge of "how to act" within particular disciplinary communities (Seely Brown and Duguid 1996, p iv, emphasis added). On their account, it is knowledge of this sort that sets the insider apart from the outsider. They describe the latter as one who is able only to mouth the "formulas" or "standard answers" offered by particular disciplines and who has no appreciation of the practices by means of which discipline-specific problems are addressed (Seely Brown and Duguid 1996, pp iv-v).

The views of Seely Brown and Duguid have general application to university education. They do not speak specifically to the concerns of lawyers. Hence, three concepts will be introduced below that can be used to throw light on the way in which law students learn, in the context of tutorials, "how to act". They are:

Also discussed in the section below is the importance of the concept of imagination to an understanding of law's processual dimension.

The Tutorial and Legal Enculturation

On the account presented in Wittgenstein's later writing, language games are discursive social practices (Wittgenstein 1953, pt I, para 23). Such games derive their distinctive characteristics from the norms which constitute them (Kenny 1973, pp 165-166). These norms can range from abstract-sounding values (which tend in the direction of indeterminacy) to highly concrete approved modes of (value-conditioned) expressive activity. Constitutive norms of the sort here described provide guidance as to how those who participate in particular language games should proceed within their parameters: e.g., guidance regarding the appropriateness of extending a particular game's modes of thought, expression, and behaviour in such a way as to embrace novel sets of circumstances (Wittgenstein 1953, pt I, para 85; see also Bix 1993, ch 2 and Patterson 1990, pp 942-952).(10) Relevant in this regard is Wittgenstein's theory of meaning as use. In this connection, he states that the meaning of words can be found in their use within particular language games (Wittgenstein 1953, pt I, para 43 and para 49).(11) Those who have grasped such meanings possess knowledge that can, inter alia, be drawn on in order to extend (on an analogical basis) existing norms of usage to new sets of facts (Fenichel Pitkin 1972, pp 135-136).

Law is, of course, a discursive social practice. It is informed by abstract-sounding values (e.g., 'justice') and features concrete modes of approved expressive activity (e.g., analogical argumentation: Brewer 1996; Kutz 1994). It is, hence, an institution to which Wittgenstein's concept of the language game has relevance (Marmor 1992, pp 146-154; Morawetz 1990 and 1992). This being so, it seems reasonable to suggest that the tutorial can be regarded as a context in which students can participate in legal language games. It can, moreover, be regarded as having (at least) the three following virtues. First, it provides a setting in which students can actively experiment, on a trial and error basis, with a range of arguments or (to put the same point another way) "moves" within legal language games. Secondly, tutors and fellow students can offer feedback on the strengths and weaknesses of such arguments and, thus, deepen students' understanding of the nature of the games in which they are participating. Thirdly, even in those moments when tutees are not actively participating in such games they can reasonably be expected to learn from the efforts of those around them, both fellow students and academics (Seely Brown and Duguid 1996, p v). This is a view that chimes with Wittgenstein's observation that individuals learn how to make effective moves within language games by "watching how others play" (Wittgenstein 1953, pt I, para 54).

An example will serve to illustrate the points made above. A student is given the task of arguing that a plaintiff, who is bringing a penumbral negligence claim, should be compensated. Let us suppose that she makes the three following points: (i) that there exist relevant similarities between the case in issue and existing case law, (ii) that similarities of the sort she has identified provide support for the view that the law's protective scope could legitimately be extended on an analogical basis, and (iii) that to make such an extension would comport with the value of justice which has, inter alia, to do with the like treatment of like cases (Hart 1961, p 155; Mullender 1996a, p 11). Let us suppose further that this argument elicits an approving response from her tutor. Her efforts are thus identified as providing an eligible model of argument from which her fellow tutees can derive guidance. Responses of this sort call to mind a practice that Wittgenstein regarded as facilitating the acquisition of the vocabularies that feature in particular language games: viz, ostensive definition, which occurs in circumstances where those who are in the process of learning a particular vocabulary have pointed out to them examples of particular practices, objects, etc (Wittgenstein 1953, I, para 6 and paras 26-35; Wittgenstein 1969, pp 1-2).

A significant part of the guidance that could be extracted from the argument outlined above has to do with law's internal point of view. This is the point of view from which the law's purposes can be apprehended. It is also the standpoint from which those forms of conduct necessary in order for those purposes to be effectively pursued are regarded as obligatory (Hart 1961, p 56, p 134, and p 136; see also Dolding and Mullender 1996b, p 13, n 10 and Marmor 1992, pp 45-47). The direct appeal to 'justice' within the argument sketched above provides a rich source of guidance in that it exhibits sensitivity to a value pursuit of which can reasonably be regarded as providing one of negligence law's purposes (Mullender, 1996, pp 11-12). Likewise, the adoption of an analogical mode of argument reveals insight into the significance of a practice which is generally regarded by lawyers (in both the tort and other contexts) as providing a means by which to pursue just outcomes (Brewer 1996, pp 936-937).

Prominent as both analogical argumentation and the value of justice are in legal discourse, law is, of course, an institution within which a wide range of argumentative strategies and a plurality of values feature. This is a point to which considerable emphasis is given by Stanley Fish in the course of applying his concept of an interpretative community to the law (Fish 1994, chs 11-13; Fish 1995, p 73 and p 75). On Fish's account, such communities are made up of those who share interpretative strategies: i.e., ways of ascribing significance to the objects of their attention (Fish 1980, p 14; Fish 1989, ch 7). These strategies are based, inter alia, on the "categories", "distinctions", and "notions of relevance and irrelevance" that have won endorsement within (and are, at least in part, constitutive of) particular interpretative communities (Fish 1989, p 141; Fish 1995, p 76). They are, moreover, informed by those purposes that the members of distinct interpretative communities seek to advance (Fish 1989, 150). We are, thus, brought to a point that is of the first significance to this discussion: viz, the various interpretative and argumentative strategies that feature in legal discourse can be employed to pursue a variety of often sharply divergent ends (Fish 1994, ch 11).

The above point provides a basis upon which to explain the broad range of arguments typically prompted by consideration of penumbral problems in the tutorial context. Consider, by way of illustration, a student who argues in support of a claim in tort for invasion of privacy (which is not, of course, comprehended by the law at the present time). Let us suppose that he advances the view that tort's historical development discloses a judicial commitment to specify liability rules in circumstances where plaintiffs can meet the following three requirements. First, that a significant interest has been harmed (Dolding and Mullender 1996b, pp 12-13). Secondly, that this harm was suffered in the course of a wrongful transaction with the defendant (Dolding and Mullender 1996b, pp 13-14). Thirdly, that countervailing considerations do not provide a justification for rejecting the plaintiff's claim (Dolding and Mullender 1996b, pp 14-15). Notwithstanding the ground-breaking thrust of this argument, it could reasonably be expected to prompt an attentive, and perhaps even approving, judicial response. This is because it coheres with an interpretative strategy regularly adopted by judges when deciding cases in tort. This is the strategy of interrogating a set of facts in order to determine whether the three requirements enumerated above can be satisfied. While the attractions of this argument are considerable, it must be recognised that it would be relatively easy for another student to offer an opposing view. It might, for example, be contended that the first student has underestimated the significance of the value of freedom of expression which countervails against the imposition of liability for invasion of privacy (Mullender 1994, pp 13-14). Given the typically impressionistic manner in which judges assess the costs and benefits of a finding of liability in tort, such an argument could reasonably be expected to win judicial favour. Even if this latter view were to be favourably received, it would still be possible for the student arguing for the imposition of liability to meet it with a plausible response. He could, for example, argue that persuasive US authority provides guidance as to how to reconcile a cause of action for invasion of privacy with the countervailing value of freedom of expression (Time, Inc v Hill (1967) 385 US 374).

The arguments outlined above in support of making invasion of privacy actionable in tort provide a basis upon which to explain the relevance to the institution of law of the concept of imagination: i.e., "the faculty of ... creating images in the mind's eye" (Blackburn 1994, p 187, emphasis added; cf Eagleton 1990, p 39 and p 132 and Nussbaum 1995, p 4). This is because they involve the making of creative leaps from the legal status quo to an imagined state of affairs in which the law comprehends a new head of liability (Brewer 1996, p 954; Pears 1988, p 432). The first of the pro-liability arguments sketched above is, moreover, analogical in character. To claim that it is possible to satisfy the three requirements that make up the interpretative strategy described in the last paragraph is to identify relevant similarities between the fact-situations embraced by existing law and the facts prompting the call for the making of new law. To analogise (and, thus, to exercise imagination) is, of course, to adopt an argumentative modus operandi that pervades the law (Unger 1996, pp 59-63; Posner 1997, p 1040). Vivid illustrations of this point abound: e.g., the leap from the doctrine of direct effect to that of indirect effect in European Community law (Hartley 1994, pp 222-225), the development of the law relating to charitable trusts (Gardner 1990, p 91), and the elaboration of the implied duty of trust and confidence owed by employers to their workers (Smith and Thomas 1996, pp 112-114). On the analysis set out above, the tutorial provides a setting in which the creative capacities that inform analogical argument can be fostered.(12) Hence, it seems pertinent to consider by what means students can be encouraged (i) to seek to argue creatively in the tutorial context and thus (ii) explore the potentialities of the institution of law.(13) To this end, a number of suggestions will be advanced below regarding ways in which both lectures and tutorials can be conducted in such a way as to prompt the two outcomes mentioned above. Lectures will be considered first. This is because they typically provide grist for the argumentative mill of the tutorial.

Setting the Scene for Creativity

To engage with the subjects that usually comprise an undergraduate law degree is to engage with a considerable amount of detail. By way of example, consider the law of negligence. Studying negligence involves, of necessity, engagement with, inter alia, a substantial body of case law. To students new (or relatively new) to the study of law, such detail can be daunting, not to say overwhelming (Glesner 1991, p 651). A dilemma thus confronts those whose task it is to teach the subject. On the one hand, detail is a necessary condition of adequate understanding. On the other hand, exposure to such detail may undercut the motivation of the students who find themselves grappling with it. This dilemma can, however, be addressed by recognising that, while the novice negligence lawyer has to confront a large body of case law, the law's rudiments can be succinctly described (Markesinis and Deakin 1993, pp 65-76). They comprise, inter alia, the following:

In circumstances where this rudimentary information has been grasped by those to whom it is conveyed, it becomes possible to move on to more detailed, and context-sensitive, examination of discrete topics (e.g., medical negligence) with some confidence that students will not be overwhelmed by the material with which they are being presented.(14) To lecture in this way is to embark upon a process in which the exposure of students to the detail of the law is managed in a manner that can reasonably be expected to (i) promote understanding while (ii) minimising the risk that motivation will be undermined. Some support for this modus operandi can be found in the writing of Peter Birks (Birks 1985, pp 1-4). Writing with regard to the (case law-based) subject of restitution, Birks states that "a mass of cases makes for unintelligible law" (Birks 1985, p 2, emphasis added). He, moreover, identifies a number of ways in which this problem can be addressed. First, he argues that, in seeking to understand the law, "the movement from simple to complex is more easily understood and controlled than are attempts to reason with materials ... whose basic structures have never been exposed or even looked for" (Birks 1985, p 4, emphasis added). Secondly, he suggests that the identification of a "skeleton of principle" provides a means by which to gain a considerable measure of analytic purchase on the law (Birks 1985, p 1). Thirdly, he argues that such a framework enables those examining the detail of the law to extract from it insights that can be used to refine their initially rudimentary understanding (Birks 1985, pp 1-2 and p 4).

While the central purpose of the conventional lecture is the transmission of information, a lecture that is narrowly confined to this task is open to the criticism that the opportunity is missed to model attitudes and skills that it is part of the raison d'être of an undergraduate law degree to foster. Consider, in this regard, a criminal law lecture on the offence of rape. Merely to describe the elements of the offence and the relevant defences (most obviously, mistake) would be to miss the opportunity to engage with a matter of intense (and perhaps irremediable) controversy: viz, how the law should seek to mediate the social defence-related interests of victims and the fairness-related interests of defendants (Ashworth 1995, pp 337-346 and ch 3). The lecturer who addresses this matter can (i) alert his or her students to the fact that the present shape of the law is controversial, (ii) explain that engagement with such controversies is not uncommon in the law and (iii) identify (by drawing on relevant materials) a plurality of views that can be taken on the matter of controversy being examined.(15) This last point is of particular importance. An important message is thus conveyed to students as to the scope of the study of law at undergraduate level. It is demonstrated to be an undertaking that involves not only the acquisition of knowledge and understanding of the law as it is but, also, an appreciation of the law as it could (and perhaps should) be (Estrich 1992, p 520).(16) Let us suppose that the approach to lecturing here described is carried into effect. It can, on the above analysis, be expected to engender, inter alia, the following effects:

Pertinent to the third point made above is a principle of motivation which is discussed in the writing of John Rawls: viz, the Aristotelian principle (Rawls 1972, pp 424-433). According to Rawls, this principle can be stated thus: "other things being equal, human beings enjoy the exercise of their realized capacities ..., and this enjoyment increases the more the capacity is realized or the greater the complexity" of the task being undertaken (p 426). To the extent that the approach to lecturing described above succeeds, in the first instance, in engaging the interest of those who are exposed to it (by providing accessible analytic frameworks) and, thereafter, prompts them to enrich their rudimentary understanding by integrating into it the materials to which they are subsequently exposed, it can plausibly be regarded as cohering with the principle described by Rawls.

Just as, on the analysis set out above, lectures can have a positive motivational impact, so too can tutorials. The beginning of an explanation as to why this is so can be found in Rawls's Aristotelian principle. In his discussion of this principle, Rawls, as we have noted, states that (other things being equal) human beings take more pleasure in particular activities as they become more proficient in them. This suggestion is relevant to the tutorial in that it provides a context within which students can, inter alia, seek to identify ever more finely nuanced resolutions to the penumbral problems with which they are typically presented. In such a setting, they can explore not only the law's potentialities but also their own. This is done, for example, in circumstances where a student seeks to make a new start from old case law by means of advancing an analogical argument. To advance such an argument is, of course, to engage in an activity that is fraught with risk. Failure to find a relevant similarity (between existing law and the facts out of which new law might be made) could be the upshot of a student's efforts. Such failures can be experienced by those making them as egregious. Hence, it is important to impress upon participants in tutorials (i) that they are engaging in a process that typically involves the exploration of a sometimes very wide range of ideas, (ii) that many of these ideas will ultimately be discarded (in the light of more cogent considerations), and (iii) that this process can, inter alia, yield creative results as novel solutions are proposed. These points, when taken together, provide a basis upon which to alert students to the further point that environments in which argumentative risk-taking is encouraged are typically conducive to innovation (Mullender 1995, p 13).

If the analysis thus far advanced is well-founded, it provides a basis upon which to suggest that the tutorial provides a context in which students can be sensitised to a number of important values and can develop a number of important skills.

Values, Skills and the Tutorial

The tutorial can (for reasons elaborated below) serve to foster in students what Karl Popper has characterised as a "rationalist attitude" (Popper 1966, p 225). This attitude finds expression in respect for the process of argument (Popper 1966, p 225). Such respect is manifested in circumstances where a participant in a tutorial seeks to learn from the criticisms to which his or her views are subjected by fellow participants.(18) Consider, by way of example, the student who advances the view that the law of contract is purely private in character: i.e., it has to do exclusively with bipolar transactions between promisor and promisee (Weinrib 1995, ch 1). Such a view can be expected to prompt, inter alia, the criticism that it fails to exhibit sensitivity to the fact that contract law is informed by matters of broad (i.e., society-wide) public concern: e.g., its providing a means by which to avoid ex ante market failure (Coleman 1992, p 73; cf Sunstein 1996a, p 2053). To the extent that the cogency of the criticism here described is recognised and the view originally advanced is modified, that process of modification can be said to cohere with Popper's account of the rationalist attitude.

Responses of the sort described above are, of course, prompted in the course of discussion in the group context of the tutorial. Hence, they can be regarded as serving to sensitise those who participate in such groups to the potential benefits of working with others. Pertinent, in this connection, is Aristotle's Politics (Aristotle 1992). In the course of discussing "the wisdom of collective judgements", Aristotle argues that exposure to a plurality of views conduces to the formation of more informed and probably more valid opinions (Aristotle, 1992, III, xi; Waldron, 1995, pp 563-564). This is, inter alia, because group deliberation can provide a corrective to the blinkered self-confidence with which individuals might otherwise hold their views (Mill, 1974, p 98 and pp 105-115).(19)

Participation in tutorials typically involves a student in the activity of argumentation: i.e., adducing reasons in support of particular conclusions (Blackburn 1994, p 23).(20) Where, moreover, argumentation in the tutorial context involves the discussion of penumbral problems, it can be regarded as a demanding undertaking. Three points provide support for this view. First, existing rules of law do not provide clear answers and, hence, students may have to mobilise, inter alia, relevant principles and policies in the course of argument (and determine the weight that can properly be given to such considerations). Secondly, penumbral problems may prompt students to argue for conclusions in the alternative: e.g., in a criminal law tutorial a student whose (primary) aim is to argue in support of a finding of murder may also canvass the possibility of a manslaughter conviction.(21) Thirdly, in circumstances where arguments of the sort here noted are advanced in the face of countervailing views, students are afforded the opportunity to develop the ability to respond promptly and cogently to views other than their own. In the light of this last and the foregoing points, it seems reasonable to conclude that the tutorial provides a context in which students can develop a skill (i.e., argumentation) that will serve them well in legal and non-legal contexts (Aronovitch 1997, pp 91-92).

The points made above bring to light another of the tutorial's strengths: viz, its providing a setting in which students can become adept at what can be termed (following Roger Brownsword) "multiple processing": i.e., making sense of particular sets of circumstances from a variety of the (often antagonistic) perspectives that are yielded by both the law itself and other disciplines relevant to its operations: e.g., the pro-plaintiff, pro-defendant and public interest-oriented perspectives that can be taken on tort law (Brownsword 1996, p 3; Hepple 1996, pp 480-484).(22) To this strength must be added the further consideration that tutorials provide an environment in which undergraduates can learn actively. Active learning occurs in, for example, circumstances where students seek to apply existing law to novel sets of facts and, thereby, gain new insights into (i) its limitations and (ii) the argumentative means by which efforts can be made either (a) to extend or (b) to resist extensions in the range of its application.(23)

Having sought to identify some of the strengths of the tutorial, the section below is devoted to the description and evaluation of a teaching-cum-learning format that could work to preserve some of the tutorial's strengths while accommodating larger numbers of students.

An Experiment In Small-Group Teaching

Before proceeding further, the sense in which the word 'experiment' is being employed in this section must be made clear. It is being used to refer to a one-off pilot of a teaching format in respect of which the hope was entertained that it might provide a viable (if rather limited) alternative to the conventional tutorial. Such pilots have two virtues. They can (i) be speedily tested and (ii) can yield data that may be used to refine both the teaching format under scrutiny and other formats (Peters 1987, pp 222-224).

Turning to the experiment itself, a group of eighteen students engaged in the study of legal philosophy were divided into three sub-groups (each comprising six members). The first group was presented with a penumbral problem to which negligence law was relevant. The members of this group were asked to devote fifteen minutes to the task of seeking to resolve it by drawing on relevant legal materials. The second group were then given the same period of time to analyse the argumentative strategies employed by the members of the first group. Finally, the third group spent fifteen minutes commenting on the wider (i.e., socio-political) significance of the problem under discussion: e.g., the way in which liability rules in the law of negligence serve to accommodate both our interest in security (by establishing duties of care) and our interest in freedom of action (by (i) limiting the range of circumstances in which such duties can arise and by (ii) placing limitations on their scope in circumstances where they are held to exist) (Dolding and Mullender 1996a, pp 298-300).

The teaching format described above yielded the following positive outcomes. The first group behaved in the manner typical of those who participate in conventional tutorials: i.e., they sought to mobilise, inter alia, relevant precedents in the process of endeavouring to argue towards a plausible conclusion. The second group were able to describe and evaluate the effectiveness of the argumentative strategies employed by the members of the first group: e.g., analogy-based proposals for extensions in the law's protective reach. Sensitivity was manifested by the members of the third group to values of central significance within the law of negligence: e.g., security and freedom of action. They also demonstrated awareness of the extent to which judges, in the course of specifying liability rules, take on the role of social architects (Fuller 1981, pp 50-52 and pp 264-270). The comments made by the members of this group contrasted rather sharply with those made by the members of the second group. While the observations made by the second group were technical in character those of the third exhibited a broad socio-political orientation. There, hence, exists a basis for suggesting that the respective comments of these two groups served to point up the fact that lawyers undertake tasks that (to draw on the writing of William Twining) range from (i) the plumberesque (e.g., skilled mobilisation of legal materials) to (ii) the Periclean (e.g., reflective and critical examination of alternative socio-political agendas) (Twining 1967, pp 397-398).(24) This point was not lost on those who participated in the experiment. This was confirmed when some of their number stated that it had brought sharply into focus the complex, multi-layered character of legal discourse.

Against the positive outcomes of the experiment under discussion must be set three points that concern its weaknesses. First, while examination of argumentative strategy (by the second group) and the law's wider significance (by the third) served to make plain the complexity of legal discourse, it involved something of a move away from the strongly argumentative mode of discussion that often features in tutorials and which was present in the first sub-group. This would seem to have been because students in the second and third groups undertook tasks that (while productive of some disagreement) were essentially analytic in character. Secondly, the members of the second and third groups were confined to comment on particular layers of legal discourse. Hence, they were unable to make rapid shifts from one such layer to another of the sort that often occur in tutorials: e.g., movement from a doctrinal point to comment on the law's socio-political significance. Thirdly, the students who participated in the experiment were in either the second or third years of their studies and had been studying legal philosophy for over sixth months. Hence, it seems reasonable to suppose that they were better prepared to cope with the experiment's demands than would have been either an entry-level student or one with no knowledge of legal philosophy. Significant as these points are, the experiment's positive outcomes provide a basis upon which to suggest that (all things considered) it should be viewed as a success. This is because it can be regarded as providing a means by which to:

Conclusions

On the analysis set out in this piece, the tutorial provides a setting in which undergraduates can supplement knowledge of legal product with an understanding of legal process. The acquisition of such understanding finds perhaps its most vivid expression in the development of the skill of argumentation. This is, of course, a skill that can be developed in tutorials. The tutorial provides, moreover, a forum in which to foster an appreciation, on two levels, of the group context in which legal argument unfolds. On the first level, it provides a setting in which students can become legal "insiders", possessed of insight into, inter alia, both the law's purposes and the wide range of argumentative means that can be employed with a view to advancing those purposes. On the second level, tutorials can serve to point up the potential benefits of group-based deliberation (e.g., exposure to views that can be used to refine existing understanding).

Three points can be extracted from this discussion that provide clues as to how we might limit any negative effects that may flow from reduced tutorial provision. First, alternative teaching formats of the sort described in the last section of this discussion may provide a means by which to expose students to and deepen their understanding of law's processual dimension. Secondly, academics could take steps in their lectures to deconstruct the hierarchical relationship between (privileged) legal product and (marginalised) legal process that is apt to arise in the context of a teaching format the central purpose of which is the transmission of information. They might do this by, for example, giving greater emphasis to the argumentative means by which legal change is prompted or resisted.(25) Such a change of emphasis would have the virtue of impressing upon students the point that legal norms are argumentative resources and not merely institutional facts. Thirdly, it seems reasonable to suggest that in the Aristotelian principle of motivation and those teaching practices that cohere with it, indications can be found as to how we might better facilitate the realisation by undergraduates of their own potentialities. Pertinent, in this regard is the suggestion that the opportunity should be taken, in lectures, to provide students with skeletons of legal principle. Such frameworks invite, on the analysis set out in this discussion, ongoing refinement. Hence, they can be regarded as a means by which to encourage students, inter alia, to develop their analytic capacities.

To the three practical points noted above three further, and more general, observations can be added. First, prominent in this discussion has, of course, been the theme that the tutorial provides a means by which to alert students to the significance of legal process. This emphasis on process is redolent of the position commonly staked out by US legal academics vis-à-vis the Socratic method of teaching: i.e., a method of legal education that involves academics in putting a series of questions to a (sometimes very large) group of students that typically bear on penumbral problems of the sort examined in tutorials (Atiyah and Summers 1987, pp 389-391; Fuller 1981, p 278). Pertinent, in this connection, are the views of Phillip Areeda (Areeda 1996). Three points made by him illustrate the prominence given to process within the Socratic method. First, it serves to impress upon students that "'the law' (particularly the ... 'common law' made by judges) is not a completely clear set of rules ..." (Areeda 1996, p 914). Secondly, when dealing with "unsettled areas", the student is, inter alia, "forced ... to examine arguably analogical legal materials and to reason through to a solution of the unsettled problem" (Areeda 1996, pp 914-915). Thirdly, Areeda states that teaching in the Socratic mode prompts students to ... use the knowledge they ha[ve] in order to get beyond it" (Areeda 1996, p 912, emphasis added).

Secondly, while the tutorial has been identified in this discussion as providing a means by which to induce in students a sensitivity to the law's internal point of view, the aim of this process is not, of course, to make them mere creatures of the law as it exists: i.e., persons who accept whatever normative agenda is embraced within the law and who (ii) seek to find more, rather than less, effective means by which to pursue that agenda (cf Unger 1975, p 139 and 236 and Raz 1979, pp 140-143). The point of legal education is not to engender an uncritical acceptance of the law's imperatives. Rather, it has to do with encouraging, inter alia, both (i) an understanding of the law's internal point of view and (ii) the adoption of external, and often sharply critical, perspectives on it (Sunstein 1993, p 26). This last point can be illustrated by reference to contemporary English administrative law. From the point of view internal to this body of law, the rules of natural justice, the doctrine of legitimate expectations, and the notion of a duty to give reasons bespeak a recognition of the inherent dignity of those upon whom the law impinges (Detmold 1989, p 173; Mullender 1997, p 320). There are, however, very definite limits to this commitment. It is not so extensive as to make legitimate the judicial review of primary legislation. A student alive to these points should, it seems reasonable to suggest, be encouraged to examine existing administrative law from an external perspective: e.g., that of a US-style constitutional order in which acts of Congress can (where a range of fundamental rights are at stake) be struck down as unconstitutional (Wellington 1990, ch 2). The adoption of such a perspective has the merit of sharpening insight into the law's limitations and can, thus, be regarded as serving to forestall the danger of uncritical acceptance of actually-existing law.(26)

Thirdly, it has been argued in this piece that the tutorial provides a context in which students can develop, inter alia, the skill of argumentation. It should not, however, be thought that this view is informed by the assumption that the worth of such an educational process is properly measured in instrumental terms: e.g., the acquisition by undergraduates of a number of marketable skills. The belief that higher education must be justified in such terms has, of course, gained considerable currency in recent years (Jenkins 1995, ch 7; Mullender 1996b, p 7). The argument advanced above can, however, be reconciled with the view that education (in all its forms) has to do with the intrinsic good of realising human potential through the pursuit of knowledge (Finnis 1980, 60-69; cf Fender 1997). Three points provide support for this view. First, the exploration of our reasoning capacities cannot proceed in vacuo; such activity has to have an object (in the sense of something to reason about: e.g., a legal system). Secondly, the development of reasoning capacity finds expression in, among other things, the acquisition of a range of skills (Rawls 1971, p 428). Thirdly, while instrumental value attaches to skills of the sort developed by those who study law, such skills can, nonetheless, be viewed as an index of participation in an intrinsically valuable educational process.

Finally, while tutorials (and alternative teaching formats of the sort described above) can be used as means by which to make students aware of the significance of legal process, it must, however, be recognised that there are ineliminable limits to what can be explicitly taught (even in the best of circumstances). Pertinent, in this connection, is the concept of 'tacit knowledge' (Fish 1989, pp 353-354; Gray 1993, p 70, et seq; Polanyi 1951). Knowledge of this sort cannot be formulated in rules. Its possession is demonstrated in use (Gray 1993, p 70). Consider, by way of example, analogical argumentation. The imaginative moment, in which a relevant similarity is perceived, is uncodifiable (Brewer 1996, p 954). While moments of this sort defy clear articulation, it is, nonetheless, the case that those who experience them demonstrate an awareness of the law's unrealised potentialities (Sunstein 1996b, p 138; cf Fuller 1946, p 376). Notwithstanding the impossibility of reducing knowledge of this sort to rule-type formulations, it can be argued that the tutorial is a context in which a 'feel' for the nuances of legal argument can be developed (Fish 1994, p 229). This point, along with those made above, prompts the conclusion that less generous tutorial provision can (in the absence of viable alternatives) reasonably be expected to impoverish the learning-cum-teaching environments of undergraduate law students.

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1. See Hepple 1996, p 485, where the provision of small-group teaching is identified as being significantly related to "the quality of the educational experience" of undergraduates. Back to text.

2. Many of the points made in this piece are, of course, applicable both to smaller tutorial groups (on the Oxbridge model) and to larger groups. Back to text.

3. See ACLEC, 1996, 2.4, where the importance of an appreciation of processes of legal "development" is noted. Back to text.

4. The distinction drawn in the text between 'product' and 'process' is similar to that drawn in Schlag 1997, p 911, between "knowledge of the law" and "knowing the [legal] ropes". Back to text.

5. The tutorial is characterised in the text as a `pedagogic practice' in that it embraces both (i) processes of teaching (as where a tutor provides guidance to his or her tutees) and (ii) learning (as where tutees generate new knowledge in the course of their activities). Back to text.

6. A strong emphasis on the law as `laid down' can be regarded as a prominent feature of this country's (positivist) legal culture (Atiyah and Summers 1987, p 3, p 258 and p 397). Back to text.

7. In the course of endorsing David Pannick's argument, Lord Bingham identified it as being informed by "principles" articulated in a number of cases, including Bugdaycay v Secretary of State for the Home Department [1987] 1 All ER 940. Back to text.

8. Seely Brown and Duguid 1996, p iv, identify the development of knowledge as the "core competency" of universities. Back to text.

9. Significant areas of overlap exist among the three concepts mentioned in the text. While detailed discussion of their relationship is beyond the scope of this piece, it should be noted that Hart's account of the point of view internal to the practice of law and Fish's discussions of interpretative communities (both legal and non-legal) are influenced by the later writings of Wittgenstein. See Bix 1993, ch 1 (on the influence of Wittgenstein's later writing on Hart) and Fish 1994, pp 292-294 (where the author discusses the impact of Wittgenstein's thinking on his own). Fish's writing is, moreover, influenced by that of Hart (Fish 1989, ch 21; Fish, 1994, p 190, p 202, and p 206). Back to text.

10. Guidance of the sort noted in the text is often rather "rough-and-ready" (Hutchinson 1995, p 809). Back to text.

11. See also Wittgenstein 1967, para 144, where it is stated that "[h]ow words are understood is not told by words alone". Back to text.

12. Analogical argument provides but one example of creativity in the context of law. A further example is provided by the identification of previously unrecognised conditions that preclude the application of a rule to a set of facts that may have appeared, on prima facie inspection, to be comprehended by it. See MacCormick, "Defeasibility in Law and Logic" (in Bankowski, et al (eds), 1995, pp 99-117). Back to text.

13. Cf ACLEC, 1996, 2.4, where the importance of fostering "independence of mind" in undergraduates is emphasised. Back to text.

14. See ACLEC, 1996, 2.4, where the importance of "contextual knowledge" is stressed. Back to text.

15. See ACLEC, 1996, 2.4, where it is stated that students should be encouraged to be open to a plurality of "viewpoints" on the law. Back to text.

16. Cf ACLEC, 1996, 1.19, where, inter alia, the view is expressed that "[s]tudents must be made aware of ... the ethical ... dimensions of law". Back to text.

17. See Birks 1985, pp 1-2, where it is argued that (textbook-based) skeletons of legal principle can serve to restrain "the centrifugal tendencies of case-law". Back to text.

18. See ACLEC, 1996, 2.4, where it is stated that undergraduates should be encouraged to be "self-critical". Back to text.

19. Cf Popper 1966, p 225, emphasis added, where the "rationalist attitude" described by the author is summed up thus: "I may be wrong and you may be right, and by an effort we may get nearer to the truth". Back to text.

20. See ACLEC, 1996, 4.4, where an ability to argue (logically) is identified as one of a number of skills that undergraduate legal education should serve to foster. Back to text.

21. See ACLEC, 1996, 2.4, emphasis added, where the view is advanced that undergraduate legal education should equip students "to formulate and evaluate alternative possibilities". Back to text.

22. Brownsword discusses the multiple processing of legal materials from the perspectives of sociology, philosophy and economics. Hepple advocates the scrutiny of law from the perspectives yielded by doctrine, policy, comparative law, philosophy, and ethics. (For discussion of the perspectives on tort law noted in the text, see Keeton 1984, pp 15-18.) Back to text.

23. See ACLEC, 1996, 2.2, where "active learning" on the part of undergraduates is advocated. Back to text.

24. See ACLEC, 1996, 4.4, where the view is approved that undergraduates should be equipped not merely with legal knowledge and `know how' but, also, with an "understand[ing of] why things are as they are and how they could be different". Back to text.

25. The use of textbooks which point up the significance of legal process would also provide a means by which to call into question the (typically) privileged status of legal product. For an example of such a textbook, see Howarth, 1995, p v and pp 165-167. Back to text.

26. See ACLEC, 1996, 1.14, where the adoption of comparative perspectives on the law is approved. Back to text.

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