Maks Del Mar talks to us about his new Special Issue on Contextual Legal Pedagogy, as part of the International Journal of Law in Context (CUP).
This special issue interrogates ‘contextual legal pedagogy’ and offers 8 new papers – including one by our colleague, Roxana Banu – on why and how contextual methods matter to teaching law.
My impression is that legal pedagogy is often not taken seriously as a domain of scholarship in its own right. And yet, both the history and theory of legal pedagogy are fascinating and important. So this is one of many planned initiatives to further support research on legal pedagogy.
We in the law school have an introductory course called ‘Law in Context’. And ‘context’ is a term that has become rather commonplace now. But what is meant by ‘context’? Is this the same as what it meant some 40 years ago – when it was closely associated with the American Realist movement? ‘Context’ has another resonance: the contextual approach to intellectual history, championed by the Cambridge School of intellectual history. This has been very important for the historiography of intellectual history – in particular the history of political thought – but such extensive reflection on historiography is not common in legal scholarship. The aim of this collection was thus to shed some critical, but also hopefully generative, light on what ‘context’ has meant and what it might mean for legal education, but ultimately also for legal scholarship.
What we hope the issue will do is begin a conversation around what contextual legal pedagogy might be and why it is important. What exactly does it mean to teach law contextually, and why does it matter that law is taught contextually? That’s the question we hope the issue will trigger debate on.
All three of us co-editors also edit the Law in Context series with Cambridge University Press. This was established in 1970, and its aim since then has been to broaden the study of law, precisely by encouraging contextual approaches. The series publishes both monographs and textbooks. Actually, one of the most interesting things about the series I find is the connection between the scholarly and the pedagogical arms of the series: I see them very much as being intertwined. Although textbooks have always been a key part of the series, there has been less reflection, within the series, about what contextual legal pedagogy might amount to. So one impetus for this issue was to trigger some collective reflection, both within the series and beyond, about this.
The other impetus was to ask: is contextual legal pedagogy still politically radical? If it is, what makes it so? Is the ‘contextual’ label just tired now politically, or might it still have some bite? If the latter, how exactly? And we wanted to invite the new generation of legal scholars to reflect on that and indicate how they are approaching contextual legal teaching. Why do contextual pedagogical methods matter to the new generation of law teachers? What does it mean for them to be contextual? We’re delighted with the results, with papers in the collection exploring ideas for teaching jurisprudence, family law, feminist legal theory, EU law, public and private international law, and planning law contextually.
There was a time when to speak of ‘contextualising law’ was a radical move. The Law in Context series, of which we are editors, expressed a stance and an attitude at some remove from what was taken to be the orthodox and mainstream methods and approaches to legal education and legal scholarship. A large part of that radicality came from the American Legal Realist (ALR) movement, and its swashbuckling, anti-establishment, no-holds-barred, sometimes historically oriented and sometimes ironic pragmatism (see Twining, Reference Twining2019). There was a normative sensitivity to ALR, but it was unfocused, remaining often unarticulated, which became, when translated across the Atlantic, self-consciously small ‘l’ liberalism: the politics of an observer, or of an exile from politics. Even when remembered in these simplistic terms, contextualism was still radical and pathbreaking in its own way. But is it any longer? If ‘context’ is wedded to realist intuitions and the realist tradition, has it had its day? Is there any point in flying the ‘contextual’ flag? Are we all contextualists now? Or, worse, is contextualism a retrograde move, bereft of any ethical or political orientation – an ineffective attempt at camouflage, hiding under some dubious cover of empirical neutrality?
This collection is part of an attempt to rethink ‘context’, to recover its radicality – normative as well as methodological. One way to do that recovery work is to unpack the concept – ‘context’ – and show how variegated, how complex, how contested it is and how many different scholarly traditions it can bring to the table. Another is to recall the other aspect of the Law in Context tradition that was radical: the close and mutually invigorating relationship, in the books published in the series, between scholarship and pedagogy. At its best, the series has always questioned that split – between textbooks and monographs – and shown that books written for students and accompanying courses, including compulsory ones in law schools, can dramatically re-imagine a field of scholarship and be of lasting scholarly value (e.g. Atiyah, Reference Atiyah1970).
This Special Issue brings together papers that do both of the above: they interrogate the concept of ‘context’, digging into its ethical, political and methodological potential, and they also cross conventional boundaries between scholarship and pedagogy. Collectively, the papers show how thinking through pedagogical practices can raise profound questions not just about the individual topics or subject areas they relate to, but also about law in general and what is ultimately at stake in all legal scholarship, namely: the good of our communities, in law schools and more broadly, and the good of our lives as jurists, scholars and teachers. Simply put, to theorise pedagogy is also to theorise law. Whether it be public or private international law, jurisprudence, feminist legal studies, family law, environmental and planning law, criminal law or EU law – all areas discussed by our contributors – the cross-cutting themes and stakes articulated by these papers take them far beyond their subject areas and into such issues as: What is the relationship between context and critique? Can contextual scholarship and pedagogy be critical, and yet generatively so – not dismissing or neglecting past theoretical traditions or the technical details of the law, but instead rereading them in new ways, enhancing our understanding of technicality (and its ethics and politics) and possibly even bringing hope? How can contextualism offer a different kind of critique, still retaining the best of scepticism and sensitivity to the varieties of legal power, exclusion and violence, but not beholden to debunking, demystifying and trashing – transforming instead into worldmaking, voice-recovering, voice-generating and voice-diversifying scholarship and pedagogy?
To think of context in this way, as each of these papers does, is to see how debating what ‘context’ is – including considering which of the possible contexts one might want to contextualise law with – is also to engage in reflecting on the ethics and politics of legal scholarship and legal pedagogy. Thus, for example, an important context in virtually all of the papers in this collection is the emotional dimension of the experience of law. Is there an emotional profile of private international law, criminal law or family law? Does that profile bring with it a certain kind of orientation to values – a particular way of understanding a certain realm of social life (the family, for example), that carries specific attitudes, tones, sensibilities and sentiments? And, if so, then what is the place of emotions in the law school classroom: what kind of emotions does one bring as a teacher and what kinds of emotional experience does one enable students to have? One might reflect, as one of our contributors does, on what happens when one brings humour into the classroom and starts to laugh at law: what kind of affective mirror does that provide to the experience of law – for instance, how (absurdly) distant its abstractions can be from the lives of ordinary persons, but then also how ordinary persons can creatively (cunningly, wittily) recycle it as part of the reclaiming of their agency?
Even the most seemingly pedestrian of pedagogical questions raises profound issues for what we take law to be. For instance, should international law be taught as an optional elective in the final years of one's legal education or should it, instead, infuse – contextualise – all the courses, including the seemingly more domestic ones, given how global all legal practice today is? Conversely, should EU law in the UK cease to be a compulsory course in its own right following ‘Brexit’ and become ‘context’ for other domestic law subjects? Should neoliberal economics be the focus of just one week in a course on, say, family law, interrogating how neoliberalism imagines the ideal family, or should awareness of and attention to the organising frames and dominant images of neoliberalism colour all the courses in a law school – as one of the contextual influences that shape both the details of legislation and the practices of adjudication? What about ‘place’: does attention to place and its imaginaries – whether of islands with strong borders, or borderless imperial dreams or of ocean currents upon which capitalism and colonialism travel – belong only to a course on environmental law, or ought they to inform our understanding of law from the first day of law school and be central, equally, to legal scholarship on all areas and topics? Is the fashioning of concepts of law in colonial contexts of relevance only to the teaching of jurisprudence, or is it also an important contextual reminder when teaching the details of, say, contract law, tort law and property law? To ask even – or perhaps especially when asking – the most practical of pedagogical questions is to very soon raise questions that turn the whole cart over, reframing, recasting, reconstituting the whole shebang.