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					                THE PEDAGOGY OF TEACHING
                   & LEARNING THE LAW
                            教/學法律教師教學

              ROBERT J. MORRIS            司徒毅 MA, JD, PhD


                                 Background

        Pedagogy is the study and theory of teaching itself and of how
students learn. Ideas about teaching and education have changed markedly
in recent decades, starting largely in the mid-1970s with the changes in what
used to be called “general education”—what John Milton described in his
landmark Of Education in 1644, and that other great educators such Plato‟s
Socrates, Francis Bacon, and Confucius taught over the generations in
different cultures and times. In addition to such changes in theory, recent
years have seen the rapid commodification of education, by which education
at all levels has become a business operating on a competitive business
model. Today‟s education is controlled more by politicians and
businessmen than by educators. Teaching has become corporatized.
Education, like soap, is a product.

       I think both of these developments have been hugely detrimental to
education, but they are nevertheless the reality of our times. The challenge
for educators, therefore, is to find creative ways to work within the new
order, and sometimes to circumvent or even subvert it, in order to maintain
the standards that have traditionally been associated with quality education.

       In thinking about education, there are two subjects that require
attention. The first is the public educational project, the system of schools,
teachers, subjects, texts, and policies that operate within the body politic.
The second is the individual causa sui project, in which each person must
consider what it means to “be educated.” The new educational consumerism
has made the student body the “consumer,” education the “product,” and
educators the “employee.” The “consumer” is now the judge of the quality
of the product, even though the “consumer” is in no position to make such a
judgment. Educational administration, hiring, promotion, curriculum design,




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and all other aspects of education are now driven by the market—the
demand for, and the satisfaction with, the product—rather than sound
pedagogical theory and empirical research. Part of this is due to the
inevitable march of globalization. Part of it is due to the need to turn a profit.
This means not only that the public education project is commodified, but
also that “getting educated” is a process of purchasing by the individual.
One consequence is that society is increasingly divided into the “haves” and
the “have notes” educationally. Those who can afford to buy a better
product get what they pay for.

        What‟s wrong with the “customer”—the student—being in charge? It
is that young students are not in a position to know what they need
educationally. If they were, then they would be the masters, not the pupils.
Of course, young students know what they like, what is comfortable, what is
“warm and fuzzy.” But they least of all know what an effective education is.
Effective teaching, as Confucius and Plato‟s Socrates taught us so well,
often means pushing them out of their comfort zones and making them
decidedly uncomfortable. But this usually does not play out well in their
evaluations of teachers who do this to them. They prefer teachers who are
their “friends.”

       This is a dangerous situation because it weakens or obviates the
position of the teacher as the Master in the Confucian sense, who “teaches
with tireless zeal” 誨人不倦 and who commands the respect and authority to
say to his unlearned and unruly student: “Sit down again, and I will teach
you.” 復坐,吾語汝.1

       My favorite movie about law school, which perfectly illustrates my
ideal teacher and classroom, is The Paper Chase of 1973. Sadly, the new
commodification of education has reduced or eliminated the presence of
such wonderful classrooms.

       All of this is a situation I deplore. People are less well educated today
than in the past, and this is especially true in the crucial areas of Civics and
the Law. This hugely important area of Citizenship Education is in crisis
today, and that is one of the reasons for so many of our civic problems, and

1
    孝經, 開宗明義.




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the basis of the largely unsophisticated level of discussion in the public
square everywhere. Education is the key to everything else in society. No
other success can compensate for failure in education.

                                Publications

2001 Book Review Essay, reviewing Berry F. C. Hsu, Laws of Banking and
Finance in the Hong Kong SAR, 8(2) China Review International 396-407
(on the misapplication of empirical field research to educational questions).

2003 “Not Thinking Like a Nonlawyer: Implications of „Recogonization‟
for Legal Education” 53(2) Journal of Legal Education 267-83 (on the
application of cognitive psychology and the study of “heuristics” to legal
education).

2005 “Globalizing and De-Hermeticizing Legal Education” 2005(1)
Brigham Young University Education and Law Journal 53-81 (on the
isolation of legal education, law, and the law school from mainstream
activity on the globalization of higher education).
2007 “Improving Curriculum Theory and Design for Teaching Law to
Non-Lawyers in Built Environment Education” 25(3-4) Structural Survey
279-92 (on the theory and problems of teaching practical law to students
outside the law school).

2010 “The Teaching of Law to Non-Lawyers: An Exploration of Some
Curriculum Design Challenges” (2)3 International Journal of Law in the
Built Environment 232-45 (on the application of out-come based education,
work-integrated education, and criteria-referenced assessment to law classes
outside the law school).

2010 “China‟s Marbury: Qi Yuling v. Chen Xiaoqi—The Once and Future
Trial of Both Education and Constitutionalization” 2(2) Tsinghua China Law
Review 273-316 (on recent examples of “controlling for education” in the
PRC).




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2011 Book Review Essay, reviewing Peter Cane and Herbert M. Kritzer
(eds), The Oxford Handbook of Empirical Legal Research, 41(2) Hong Kong
Law Journal ___.


September 15, 2011
www.robertjmorris.net




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