"Democracy Begins in Conversation": The Phenomenology of Problem-Based Learning and Legal Education

By Maharg, Paul | Nottingham Law Journal, Annual 2015 | Go to article overview

"Democracy Begins in Conversation": The Phenomenology of Problem-Based Learning and Legal Education


Maharg, Paul, Nottingham Law Journal


INTRODUCTION

Learning is complex for any number of reasons. One of these is that it doesn't take place in a laboratory: it happens in real places, within and between real people, and as a consequence it takes place in multi-factorial environments. At every stage of learning in Higher Education (HE), from student choice of institution and programme, (1) to the transfer of learning from theory to practice, (2) to a single institution's or a teacher's evaluation of teaching and learning, (3) there are many causal factors that affect educational process and outcome. The complexities and variables created by the interaction of such multiple factors, well known in the field of education, make learning a highly complex phenomenon to analyse and understand.

It is complex also because the conceptual and analytical tools that we need to use in legal education are developed in disciplines other than legal education. Indeed it could be said of education itself that it is inherently an interdisciplinary discipline, because it is not possible to analyse many aspects of educational experience without straying into or borrowing from another disciplinary domain--educational psychology for instance, or communications theory, or economics or the sociology of educational practices.

In this article I argue that the phenomenological complexity, the lived experiences of educational practices in legal education is a research field that we still need to investigate and explore in much more detail. Such an exploration will not be theoretical only, but will fuse theory with an understanding of context and practice. In this, I take a Deweyan and Pragmatist view of education, holding that any theory of knowledge is also, fundamentally, a theory of inquiry. It is not possible therefore to separate educational theory from educational practice. Just as there can be no complete and absolutely correct map of the planet, so what we map in education will be contingent, local and purposive--and in this lies its explanatory and predictive power for us as educators. The process holds larger significances, too, and is important for the development of legal education as a juristic as well as a heuristic activity. The conversations about theory in practice and practice deriving from theory are essential to the development of democratic legal education, and legal education for democracy, as we shall see.

To investigate how the phenomenology of educational practices can be further developed in legal education, I shall take Problem-Based Learning (PBL) as a case study. PBL is a useful field for a number of reasons. First, it is derived from another discipline, namely medical education, and is therefore an interesting study in interdisciplinarity. Second, it has generated over half a century of substantial literature describing and analysing both theory and practice. Third, it is to date little used in common law jurisdictions. Fourth, and perhaps most valuable, the adaptation of the heuristic for legal education changes the nature of that education; and the nature and extent of those changes are the focus of the case study.

In the argument that follows, we shall start with a general description of PBL and its origins in the Health Sciences, followed by a summary of the educational advantages and disadvantages of adopting PBL as an educational method, a summary of the brief literature examining the specific application of the method in Law, and a brief overview of the literature on PBL in Law and technology. I shall argue that Law requires the development of a distinctive evaluative approach to PBL, one befitting its role as a Social Science or Arts domain rather than Science; and that the guiding principles of this are available in part within the medical educational literature, but also within the fields of phenomenographical and phenomenological inquiry. Since PBL is interdisciplinary, the case study is too. It involves aspects of literature review, and therefore a general description of the methodology is stated in the footnote below. …

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