TWO MODEST PROPOSALSFOR THE HAPPIERTEACHING OF PUBLIC LAW
Dr Lars MosessonBucks New [email protected]
BACKGROUNDIt is regularly reported that many students on an LLB or GDL find Public Law (or “Constitutional & Administrative Law”) particularly challenging.This session will examine if this is found generally to be true; and, if it is, what we, as teachers of the subject, do and can do about it
SOME SUGGESTIONS FOR WHY IT IS FOUND SO CHALLENGINGIt is a Challenging Subject!Students find it shapeless, confusing, irrelevant, not “Law”...It is unlike most other subjects on LLB or GDL, but still requires legal disciplineThe subject includes concepts (conventions & normativity, sovereignty, Rule of Law...) which are as challenging as any on the LLB or GDL.There is no creative document in the UKDicey’slegacy & the Traditionalist mythology are misleadingThere are no centre or natural limits to the “subject”, and little agreement on its scope & content or on the approach to takeFew students have any grasp of history or politics – or of the nature of language
2. Few Practitioners, Black-letter Lawyers or Private Lawyers Grasp it:It is ahybrid& contradictory area of study, involving formalism & realism; law & politics; norms & reality; the “authorities” & the daily news.The courts are often not theprimary decision-makersof the issues.The subject involves appreciation of thebig picture& deep issues & specifics., includingpoliticalrealities.There are key issues on which there isno one definitive answer.There isinherent uncertainty& constant change, involving history & the present & the near future.
3. The Books are very Variable:Sometextbooksare good,but manylackcoherence or clarity or depth or relevance or inspiration and a sense of the vitality of the subject– often dry, plodding, flat, pot-boilers, own lecture-notes, aiming low (if anywhere)– and the good ones are challenging at first.The collections ofcases & materialsare often eccentric, designed for the author’s own particular courseLawdictionariesare particularly unhelpful in this area
HOW SHOULD WE RESPOND?TWO SUGGESTIONSBe straight with the students: the subject is challenging-but it can make sense, if they work, think and use our support.- & it can become rewarding & even addictive!We must trust the students, inspire them, challenge them - not short-change them.Provide a conceptual framework & the relevant tools, & bring the subject to life.
1. Provide a Clear, Consistent & Living Conceptual FrameworkThe purpose of the state as a living social organisation, within normative regulation=the need in a state for a system withofficials,who needpowers& to have & feelresponsibilities,in ahealthy balance= all the practical issues that flow from this = form & realitySetting up (“constituting”) a tennis club – and running itJusticiability– the limits to legitimate decision-making by judges– “Render unto the courts that which is of thecourts”=andleave the rest to democratic politics
2. De-Bewitch our Intelligencea.Wittgenstein=Words & meaning=Essentialist fallacies & hidden pre-emptionsOf facts & normsOf pens & love & shags...b.Many terms in Public Law are ambiguousand need clear &multipledefinitions , e.g.:-- Constitution- Constitutional law- Separation of Powers- Convention- Parliament- Sovereignty- The Rule of Law- Democracy
PURPOSE &ADVANTAGES OF INCLUDING THESE ELEMENTSGive students the tools & motivation tomake senseof the materialsEnable the students toenjoyit-and to do better in assessments.Wider education= to understand:- the state-system;- practical social decision-making;- how inevitable social problems may be prevented or resolved;and how to avoid wasteful confusions caused by carelesslanguage, as found in some books and in the media.Give the studentsthe frameworkof Public Law within which Private Law operates.
DISCUSSION1. Do your students find Public Law particularly challenging?Did you, as a student?If so, why do you think this is?How have you responded to this challenge?2. Do you think the suggestions, above, would help your students?3. What other ideas do you have for helping your students to understand & enjoy thesubject?