Extricating from the dilemma of law teaching approach Текст научной статьи по специальности «Прочие медицинские науки»

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Extricating from the Dilemma of Law Teaching Approach

Yan Geng1

ABSTRCT : This paper about legal education methodology problems and solutions makes an analysis

on the problems of traditional teaching method as well as the dilemma of the clinical-style ethodology in China. At the same time, the author introduces her own experiences to solve the problems by dopting a teaching method named role case teaching methodology.

Keywords: Teaching Methodology; Traditional Teaching Methodology;

Role Case Teaching Methodology

1 Yan Geng, Associate Professor, Director of Law Department of Law School, Qingdao University, China.

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Extricating from the Dilemma of Law Teaching Approach

Geng Yan10

ABSTRCT : This paper about legal education methodology problems and solutions makes an analysis

on the problems of traditional teaching method as well as the dilemma of the clinical-style methodology in China. At the same time, the author introduces her own experiences to solve the problems by adopting a teaching method named role case teaching methodology.

Keywords: Teaching Methodology Traditional Teaching Methodology Role Case Teaching Methodology

9 2005 142 Ko

10 Geng Yan, Associate Professor, Director of Law Department of Law School, Qingdao University, China E-mail: daisy-qd@126.com

In accordance with a mainstream view, based on the concept of "rule of law" China's current legal education is in the period of comprehensive development or in the best period of development. The performance is that most of universities have set up their Law Schools, a large number of talented people-legal graduates have been sent to society. In short, the picture of prosperity in history has never happened before. However, even in such a prosperous period, legal education reform has never stopped. Legal education reform focuses mainly on curriculum reform instead of legal education methodology problems. For example, the fourteen substantive subjects11 provided by the administrative department in charge of legal education is a result of the curriculum reform. Meanwhile, reform in legal education teaching methodology which emphasizes the effective approaches to how law is taught and learned has not been given due attention. In fact the reform in legal teaching method should be more important compared with legal courses reform. To a great degree, the reality and the lasting of blooming in legal education depends fundamentally on the selection of approaches to how law is taught and learned. In other words, the attempts only in reforming legal courses will be proved futile without the reform carried out in teaching methodology.

Part one

PROBLEMS OF TRADITIONAL TEACHING METHODS

Doubtlessly by using traditional legal teaching methods teachers have been put in an absolute dominant position in legal education which means performance of teaching, the choice of law of imparting knowledge of the scope, focus taught, the focus of inspection, inspection form have been determined all by teachers themselves without any participation of students. Although the selection of courses will be controlled by administrative department in charge of legal education, such as the fourteen substantive subjects, but the choice of teaching materials, teaching models and knowledge structure and other aspects are still at the core of absolute dominance of teachers. For students what they can do is that they passively accept contents of teaching and take part in examination until graduation. They have not any opportunity to express their own opinions on the teaching itself.

The traditional teaching methods emphasize memorization of existing law knowledge. Because of their passive position in the legal education, the most important thing of the legal students is that they should memory the standard answers taught by teachers and transform them totally to teachers in examination. So the ability of reciting or memorization is so important that no one could ignore it. In other words almost all the examinations are based on memorization of existing law knowledge even those absolutely abstract legal conceptions such as constitutional government and polity. In fact it is possible in many legal fields such as constitution there are lots of different answers to a same question.

Lacking in professional skills

The purpose of legal education in china is still in debate,12 but in my own opinion, as a

11 Fourteen substantive subjects includes constitution law, philosophy of law, civil law, criminal law, economic law, administrative law, civil procedure law, criminal procedure law, intellectual property law, commercial law, legal history, science of international economic law, public international law, private international law.

12 On the nature of legal education and the education law should be based on Europe Anglo-American model or the mainland model in the education sector there are still no small controversy. In short, the controversy focuses on the vocational education and academic education. "The purpose of Anglo-American legal education is vocational training; the future goal of European legal education is to foster talents with knowledge of laws, the sense of procedures.”Heweifang, Selected Works of Legal Education, "Beijing, the China Politics and Law University Press, 2002 edition P.49.

student in jurisprudence, becoming one member of the legal professional should be its rightful pursuit, as well as an achievable goal. The traditional teaching methods have being an obstacle to the training of professional skills which means although it is possible for students taught by traditional teaching methods to pass the Judicial Examination, the students still lack professional skills necessary for working as a legal professional. They do not know the methods of legal research and analysis, the skills of negotiation and mediation, the legal ethics and professional conduct. Furthermore, faced with concrete cases, the students even do not know the legal relations between legal regulations and detailed facts though they can recite all the provisions.

Lacking in "Discovering Law in Action”

Roscoe Pound, a jurist of sociological school of law pointed out in 1910 in his paper named Law in Books and Law in Action, “Application of law is a procedure of discovering law in action, rather than a procedure of discovering law in books.” For example, it is particularly important for a judge to find law in action when he\she is faced with a number of legal rules in dealing with a specific case. In other words, a judge will inevitably face the choice of discovering law in action unless the judge rejects In fact the judgments made by a judge, regardless its decision could be regarded as the outcome of discovering law in action including discovering new rules not existing in books. So the capacity of discovering law is necessary for a legal professional. However, this ability could not be trained only by instilling teaching methods, because it does not only dependents on the formation of legal knowledge accumulation, but also depends on the values of the discoverer, experience and prediction including the prediction on development trends of society.

German legal education also have been annoying by instilling mode of teaching methodology, Leipzig professor of law ADOLF WACH had an evaluation, "Without more expositions it can be found on the importance of teaching methods-so many people slacking off on independent study, the students fled to the tutorial staff where to seek help ... This shows that the requirement of courses are too much and we are doing too little to help students to understand the capabilities."13 In fact, this statement described the circumstances is not applicable to today's Chinese legal education. With the same law teaching methods, it appears that we inculcate the less, which means students at the school are more relaxed, not feeling the pressure of specialized courses, only to the judicial examination. They began to seek remedial classes only under the pressure of Judicial Examination. How can we talk about the professional skills even specialized courses for four years are unable to deal with Judicial Examination?

Can not cope with the growing emerging legal phenomenon

All the changes of society result in many new conflict of interest and needs to be adjusted by law. For example, the development of science and technology has changed the survival of the human race resulting in demand for energy and environmental conflicts. Legal occupational groups will have to be faced with these conflicts before legislators aware of these problems in accordance with the principle of’ prohibition legal silence" and "the law is the final maximum relief means". So the legal professional will have to take the responsibility to solve social problems. However, it is imposable for those people taught by the instilling teaching methodology to undertake this responsibility to solve new conflict of interest. In fact, because of the lack of legal professional skills and practical experience, for graduates even the "legal technical craftsmen" requirements are difficult to achieve, how can they solve social problems through judicial settlement? In recent years, the fact that professional keeps silence on

13 Berend Ruthers (Germany), "Jurisprudence", Beijing, legal Press p. 19, 2005 edition.

some social problems such as euthanasia also reflects the awkward situation in our legal education particularly the legal teaching methodology.

Part two THE PROBLEMS IN CLINICAL TEACHING METHODOLOGY IN CHINA

From the late 1990s, in order to address the plight of instilling law teaching method, a teaching method named clinical-style methodology began trying to be introduced in china by the American Law Institute and the education sector. On medical concept-clinic, the purpose of clinical methodology is to train students’ professional skills, especially capacity of solving specific legal issues, by allowing students to participate in the actual real legal problem-solving following teachers’ specialized guided by teachers’ specialized instruction.

Because of its open nature clinical teaching methods has become the most dynamic teaching method in American Law Schools and its superiority to other teaching methods has been proved. Just in view of the reason mentioned above, clinical teaching method has been introduced into china. But seven or eight years later, such a teaching method did not as expected in the Chinese legal education rooted. Currently, clinic teaching method has been adopted in less than 10 universities, where it is facing a map in its predicament.

Clinical Teaching Methodology and the Scale of Legal Enrollment is Very Unsuited.

China's current legal enrollment has demonstrated an unprecedented scale, because law has been regarded as” popular good” rather than natural population base. Almost every university has established law school, in addition to comprehensive university, the specialized institutions such as the Forestry University, the University of Geosciences, and Agriculture College etc. the size of enrollment results in imbalance in legal education. For example, the teacher and the students are in a ratio of 1 to 24 in Qingdao University Law School, which also includes other teaching aids. Full-time law teachers and students are in a ratio of one to 40. It is extremely common for a teacher to teach more than 60 students in one classroom. However clinical approach requires an appropriate teacher-student ratio, which means one-on-one mentors to give specific guidance. This imbalance in the ratio of teacher-student has made legal education almost reduced to "popularize the education", how to run clinical approach?

Clinical teaching Methodology and Law Teachers are Very Unsuitable

Almost all law teachers have the same experience: from university to university, which means they are lack of legal practice based on specific application of the law. Furthermore the teachers have been fully affected by traditional teaching methodology because of their experience. In addition, it is very strange for teachers as scholars to look down upon those engaging in legal professional, which actually hamper the exchanges between them. Clinical-style method involving actual real legal problem-solving requires teachers to give his\her own instruction as an experienced instructor. So it is not difficult to deduce the effectiveness of clinical teaching method from the teachers without any experience on legal professional.

Clinical Teaching Methodology and China’s Current Legal Sources are Uncoordinated

Up to now, although the values of the case law has been accepted by academic field , case law is still not China's official source of law and "a precedent" has not become the rule. An important characteristic of Clinical approach is to find the rule of law and learn the actual legal knowledge in actual cases- precedent.

Therefore, as a result of one of the problems clinical teaching methodology and China's current legal sources are uncoordinated. In recent years, courts have tried to make law in the form of so-called

typical cases. According to the Supreme People Court's view, “these cases are typical cases with characteristic of authenticity, impartiality and authority and should be treated as an important tool to guide local people's courts at all levels."14 But because of the lack of summary on principles and rules there is still some distance between these cases and precedent, which means these cases edited by SPC could not be treated as case law.

Part Three

Reform on the environment of teaching methods

Law reform of teaching methods from the surface seems to be the reform of purely legal teaching specific ways and means, but in fact it depends on the environmental conditions of education. Some of the specific teaching methods used directly with the number of students, which means if the number of students exceeds a certain limit will directly affect the effectiveness of teaching methods. In other words, the environmental conditions of education to some extent also form constraints on the application of specific teaching. Therefore, reform of teaching methods should be based on the reform on the environmental conditions of education.

Cutting the Size of Enrollment of Law Specialty

In order to ensure of quality of legal education, the size of enrollment should be cut down. To some degree, legal education is elitist education

Engaging in such occupations were not only requiring access to specialized legal knowledge, but also having very strict or even harsh demands on the Code of Ethics. For example, so many principles have been used such as the concept of justice, the rule of law and so on to ensure such elitism.

However, the development of education has been greatly constrained and limited by the expansion of the size of enrollment, which also results in a long-term domination of instilling teaching methods. Due to the expansion of the scale of the students, law courses to some extent have fallen into "law popularization" propaganda through which students only receive the legal provisions of the notes rather than legal professional skills, the train of legal culture and faith is paralyzed. Because such a belief does not rely on memorization provisions, but rely on application of law to understand, cognitive and strengthened. Due to the size of enrollment expansion, this brought up many restrictions, so that such elite education becomes elusive dream. The Legislative Council of Hong Kong has proposed a motion about decline in the quality of legal education in University of Hong Kong and enrollment scale should be reduced in accordance the motion.

In fact, the situation that legal teaching method has been in a dilemma because of the size of enrollment has appeared for a long time, just because of a period of superficial prosperity in legal education this problem become more apparent. Looking back, as early as the 1930s, the situation was very similar to the legal education today, expansion of enrollment and methods of legal education imbalances also very conspicuous. Therefore, a proposal had been given to reduce the size of enrollment and to give a breathing space to legal education. Now, when the university enrollment will not be further expanded, it is possible to give legal teaching methods a review and a ranging space by reducing the size of enrollment.

Training Teachers

14Wang Liming, "The Complete Works of the People's Republic of China Supreme People's Court” ,Beijing, legal publisher’s 2000 edition, P.257

Teachers engaging in law teaching, whose qualifications depend on diploma and academic backgrounds rather than legal practice experience, are scarcely cope with the reform of traditional teaching methods. On the other hand, in those universities adopting clinical teaching method the actual legal issues in the handling basically rely on the firms. However, the pursuit of profits, which is the main purpose of law firms, largely curbed their enthusiasm; make clinical teaching exist in name only. So, for the long-term goal, in order to found basic premise of reform on legal teaching methods, conscious and planned practice legal training should be taken on teachers engaging in law teaching. Part Four

ROLE CASE TEACHING METHODOLOGY

Despite of its unique function in accumulating "live" legal knowledge and the training for the legal professional, clinical education in promotion by the tremendous constraints due to the expansion of the size of enrollment. Even those universities adopting this approach have no choice but to carry out strict requirements on the number of students. For example, in Beijing University the legal clinics relying on "Women's Legal Research and Service Center" and Tonghe Law Firm has limitation of no more than 20 fourth-grade students, which means majority of students have to faced with traditional teaching method, instilling teaching method. Because of this, before the enrollment of students meeting setback requirements pedagogy must find another way out.

As an experienced teacher the author has engaged in law teaching for many years, especially on the training of professional skills, and has experienced a series of teaching methods named ROLE CASE TEACHING METHODOLOGY. The distinction between Role Case Teaching and ordinary case teaching methods lies in the allocation of roles, which means students will be divided into different roles according to concrete cases, such as plaintiff and defendant, prosecutor and defense, judge and arbitrator and so on. Even in pure theory of law teaching, role division can be taken, such as in pursuance of view classified. Once the division of role, the students must complete roles’ task, which means they will have to make legal analysis and strive to make the view of the role the greatest degree of support in accordance with the requirements of the role. Role Case Teaching Method can be divided into case preparation, a curriculum, seminars, teacher evaluation. After application, the teaching method has been made more satisfactory results, particularly in the lawsuit postgraduate teaching.

The Preparation of Teaching Cases

Role case teaching method was characterized by an emphasis on a case-by to form a legal education courses and process to find the meaning of the rule of law. In one word, the quality of case will directly affect the effectiveness of teaching.

The teaching law cases in China mainly lie in the following sources. The first category of cases comes from so-called legal program broadcasting on television, such as the program named Statement Today issued by CCTV. Characteristics of such cases are real, and generally have a significant impact but not suitable as teaching cases. The reason is that as the production of television and other media, greater consideration have been given to a "strong visibility" "informative", "stimulant more" etc., moreover, because of the pursuit of a splash and being intended to attract eyeball, more sensational language have been used to describe the case itself, so that cases appear to be more "mysterious" and "bizarre" . Instead, the legal doctrine embodied in the small, and may even have been restricted. The Second category of cases is Reports. Compared with the first category, the characteristics of such cases is also true and the difference lies in contents, which means the Court's decision have been regarded as an integral part of the case with the author’s note for the evaluation and embellishment. The reason why such cases are not suitable as teaching cases is that the court's decisions are very short of

illustration, especially rational illustration based on legal theory. In other words, interpretation of the law as well as legal reasoning are so inadequate in court’s decision that the students’ legal thinking can not be trained, on the contrary, the inadequate of rational illustration may also constitutes a simple legal thinking or even the " Objective Thinking ," which means deducing the reason for a judgment from the judgment itself. This case approach is contrary to the purpose of role case method.

Therefore, in order to promote the role of role case teaching, teachers engaging in law teaching should prepare cases first. Even in those countries adopting case law, not all real cases can be directly used for teaching cases. Randall, law school of Harvard University pointed out, "Only those cases whose judgments contribute to the development of provisions can be treated as cases in teaching.” To this end, Randall according to the judgments of the Court of Appeal edited the case covering contract law, rules of equity and other fields, as a teaching case law sets.

I have done a try and achieved good results. Firstly in accordance with the rule named Case Teaching Norms promulgated by Law School of QingDao University, I collected the original case, including the backgrounds of the case, the verdict, the indictment, the defense words, and the various comments on the case and so on. The focus of analysis treated as the most important component of a teaching case should includes the focal points of problem, focus on the different perceptions and jurists reasons including rules and theory, conclusions , teachers’ own opinions focusing on the issues as the focus and difficulty with integration. During this period, I also heard reference and suggestions of the legal profession departments such as the courts, law firms and other senior legal practice with rich experiences. Changes should be made to enable cases to truly achieve the objective of teaching after the application of teaching in a certain period, usually limited to one semester, according to assessment of teaching and students’ comprehensive understanding.

Pure theory of law teaching, cases can be also used. But by this time the "case" will no longer be either a specific case as a real basis or source material, key words but to link up some of the legal points of view, understanding the pool. Such viewpoints are entirely possible understanding between each other or conflicting with each other, the situation is as true case between the parties to focus on the support or conflict. Therefore, they can be served as "cases."

The Division of Courses Groups

The courses group should be divided according to the number of students usually less than 15 suitable. Division should be based on role and the will of the students, such as to the role of judges as a group, and so on. To let this group of student’s better match and some students overcome the shy and introverted, the group should take a fixed model, usually a term limit. Of course, it does not prevent the exchange of individual students. In addition, in order to really play the role of role case teaching, the overall rotation of role should be taken in different stages of teaching. For example, a group in a particular case as the role of judge is very likely to become a plaintiff role in next case as the curriculum Unit. To facilitate the teaching curriculum group activities, teacher should appoint someone as leading cadre who is responsible for the selection group convened course, presided over the discussions and discuss the course record.

Discussion

If the case preparation and the curriculum are defined as the foundation work of role of case teaching method, so discussion is one of the key.

First, on the basis of category of questions in accordance with the role of classification, teachers will make arrangements for questions case involved to the different roles of the curriculum. For example,

the teaching case named Dubaoliang administrative penalty case15, which relates to administrative punishment, Chief relative to the right to know, the traffic control regulations, and other specific application of administrative law, all the problems have been classified with the progress of the case and the actual views of parties. In distribution, the demands of role should be also assigned, which means curriculum groups are assigned to the analysis, discussion and comment of the case according to the role. It must remembered that it is prohibited for individual to violate the demands of particular role even he or she does not agree with opinions supported by the role himself/herself. The practice is designed to introduce students to be provided a legal perspective to involve the legal issues more in-depth understanding including roles and their problems, it also will allow students to get a better understanding on evaluation made by teachers afterwards.

Discussion should be held in the classroom according to the progress, or may be required to conduct after school. Teachers should give their full guidance or instructions to the curriculum groups during discussion. Of course, in the after-school discussion teachers can govern according to discuss record. The guidance given by teachers must combine with the role because different roles combine with different demands. If I sit guiding role of a judge I will stress judgment and analysis on the focal points of case. One the other hand, guiding role as the plaintiff, I will guide group how they could make their claim more rational, more support for the possibility. To better role by allowing students to experience and understand cases involving legal issues, such guidance is individual, means that each course group is a separate group to be guided by their teachers separately.

In the discussion stage, teachers should also pay more attention on leading students’ thinking. Extreme or radical thinking is not conducive to training students’ rigorous legal thinking, judgment and reasoning ability, which should be corrected when necessary.

Discussion stage ended with the formation of advice on. I usually required each course group will be formed to discuss their views in writing sorted out, 1-2 elected representatives to describe their views. This would not only allow the instructor to fully understand the quality of discussion, but will be useful for train students’ capacity of writing, expressing and response.

Evaluation

Teacher evaluation is the key whether the role case teaching method can achieve a satisfactory result, which consists of assessment of discussion, analysis related to the legal issues. The assessment of discussion means an evaluation on the ways of discussion, problems, the related contents of the law, when necessary, evaluation on individual students. Legal issues explained by teachers are comprehensively expounded and analysis based both on the facts of case and doctrine or provisions of law. This is usually on the heuristic and teachers can question or doubt from the relevant legal issues themselves, inspire students until they find answers to explain the purpose. This can be hastened on the free and active, straight, impersonal and selfless to solve specific problems around and input. Compared with traditional teaching methods, the analysis made by teacher on the stage is no longer "indoctrination" on the students, but a way for thinking training through a process of discovering problems and solving problems. So the students are no longer the simple "memory machines".

Part five

15 An administrative case happened in Beijing in 2005. As a plaintiff, Dubaoliang accused Beijing's Xidan detachment of Traffic Bureau of not informing his same violations of the law (against signs prohibiting passage) during 308-day period in the same location and fines had accumulated to 100,500 Yuan.

MATTERS NEEDING ATTENTION The pressure on the students

Matters needing attention is students’ emotion and pressure on the students. According to the author's experience, an adjustment process should be needed for students to be used to role case teaching method requiring them to take an initiative participation in the role, especially those students with ashamed expression. Therefore, in order to fully achieve of the objective of role case teaching method, teachers in the whole process of teaching should always pay attention to emotion and do their utmost to relieve pressure on the students. The author's experiences are the following. In delineating Curriculum Unit, teachers should respect for the wishes of the students, boys mix with girls and active mix with inactive students. In giving guidance, inactive, introverted students should be given more inspiration, encouragement, constructive way. Normally, in the evaluation stage if we can spend 1 -2 minutes on individual students targeted by the encouragement and recognition evaluation, the students then the next group of courses will be very positive initiative. If individual students to teachers to explain the legal issues with a very different view of the firm, teachers can not directly deny, and should first affirm their independent thinking and independent judgment. It must be remember that it is very important for students to maintain their "face", which usually links with the "self-esteem".

A Sense of Trust in Teachers

The key to success in role case method is guidance during the whole process and evaluation made by teachers. These are based on the students’ fully trust in teachers. It is hard to imagine the effect of the method without fully trust. Therefore, I suggest teachers who will take role case teaching method should have accumulated considerable experience in teaching, have already established a considerable prestige and practical experience to support. Moreover, in the process of teaching, teachers should always safeguard their students to trust, treat students and different academic perspectives with an objective view.

The Material on the Case

It should be noted that in legal education, methods to prepare for the case on behalf of this teaching method has also been questioned, one of the biggest reasons is that the large-scale editor with editorial comment on the reports will hamper the independent thinking seriously and impair critical reading ability of students. But on my own opinion, in view of China's law school students from secondary schools are directly enter with no foundation of basic legal knowledge, lacking basic ability to analyze and judge(the model of secondary schools for legal education did not bring small obstacles ). So in legal education the effect can be imagined without comment on orientation including teachers’ taught. Therefore, role case teaching method is very worthy of promotion, especially in the students of low-grade stage with initial contact with the rules and the theory. Of course, in high grade, on the basis of basic analytical skills in order to improve critical reading ability, teachers could provide some of the original without any evaluation of the law, such as the judgment, original works which set out principle of law.

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