Critical thinking in legal education: What? Why? How? By Lucas Lixinski

by Lucas Lixinski

An article in today’s The Conversation asks whether universities really do a good job (or any job at all) of teaching critical thinking. While acknowledging that defining critical thinking is incredibly difficult, and that most definitions out there are vague at best, the article then moves to discussing whether universities actually teach critical thinking in the way they promise they do. In what seems like a job market that increasingly pays a premium for applicants who can demonstrate having learned critical thinking skills, there is a clear financial incentive (beyond the obvious intellectual one) to be more self-aware of what critical thinking is in our discipline, and how we actually go about teaching it.

 

What is critical thinking in law?

I will not by any means attempt to give an all-encompassing definition of critical thinking more broadly, nor critical thinking in the law. Instead, let me just say where I come from, and try and make sense of the landscape from there. The intention here is to start conversations and provoke reactions, rather than lay down the law (pardon the pun) on the matter.

 

In my opinion, critical thinking has to do with challenging assumed wisdom, and showing students how to do that themselves. In the law, as far as I can see, there are two ways in which I can do that. The first one is to focus on the contingencies of the law, whether they are economic, historical, or political. Things like the old adage that “the law is made largely by, and for the benefit of, white, male[, heterosexual, able-bodied] property owners” tends to be a great starting point to unravel those contingencies. As is the broader historical context of critical moments in the formation of the legal system (like the influence of Protestant ethics in the shaping of the Common Law and its approaches to labor and property, which is different from the way the mostly Catholic Civil Law jurisdictions behaved in Europe at around the same time).

 

Secondly, another way of critically thinking about the law, in my view, is to look into the background. More specifically, when we think about, say, a contract for the purchase of milk, the foreground body of rules operating is contract law. However, in the background there are a number of other bodies of law that influence what is possible for a contract (even though on paper contract law is still the quintessential guardian of private liberty), such as food security rules, (international) trade law if milk is considered to be a strategic product the production of which is incentivized, the corresponding tax arrangements, etc. Admittedly, it makes teaching a simple case daunting, but I always tell my students that I don’t need to have all the answers to those all the time, nor do they. But they need to be mindful of those knock-on effects of the simplest legal rule (sort of a “butterfly effect”, but in the law, and hopefully not creating any hurricanes anywhere).

 

How can we “teach” it?

If you haven’t caught on to it yet, let me out myself here. The way I think about critical thinking, and consequently teach it, is influenced by the way I think and write about the law more generally. Which is to say, I have a hard time dissociating critical thinking as an abstract and transferrable skill from critical legal studies, which is a specific way of theorizing and understanding the law. In other words, the way I conceptualize and “do” critical thinking is deeply influenced by my own bias as a critical scholar (well, much of the time anyway), which is framed by my politics, rather than my raw analytical ability. Assuming this neutrality is desirable (and the article on The Conversation referred to above suggests as much), how do I counter my own biases?

 

Maybe the assumption is that teaching a lefty orthodoxy induces critical thinking, in that it challenges status quo and conventional wisdom students come to the table with. So, maybe the way to teach critical thinking is to constantly challenge student’s assumptions. Except that those assumptions vary radically within a cohort, and change a lot throughout the degree. Which is to say, it may be safe to assume that a first-year undergraduate class at an elite university is made up of students whom you can assume espouse certain center- to right-leaning assumptions about the world, inherited from their parents and their upbringing. But, after spending a year being challenged on those assumptions, it may be that an upper level class needs to be re-presented with the Liberal version of the world. That is, of course, if critical thinking is to be conveyed through “thick descriptions” of reality as a means to understand and apply the law.

 

Which is to say, maybe the way to teach critical thinking is to make the teaching less about what I think, and more about playing devil’s advocate all the time to what students think. And that is a fair enough proposition in a student-centric model of education, but, if teaching is also meant to be (at least to some extent) research-driven (not to mention students’ insistence on “answers”), isn’t it my job to convey what I think after all? I constantly try to strike a balance between what I think and other opinions out there, and present them all, but I’m not sure I’m always successful.

 

This discussion brings to mind an old and still current debate about the purpose of legal education. Is legal education about teaching substantive knowledge of the law, or just skills (“thinking like a lawyer”)? I tend to think the latter, but, in considering the legal profession is subject to an increasingly strict regulatory environment, content is also incredibly important. It is also easier to measure and assess. Problem questions have a way of assessing critical thinking, but often enough (as people marking exams everywhere may attest to), answers to problem questions can too easily devolve into knowledge-spewing for significant segments of the student population.

 

So, what to do?

I honestly don’t know, and invite other people’s views on the matter. As far as I can see, I will keep on trying to challenge students at every turn (and have they challenge me), but being mindful that my opinion counts, while certainly not the only one that does.

 

In one of my classes (an Introduction to the Legal System-type class, called “Introducing Law and Justice”), I have the privilege of talking to students in one of their early contacts with the legal discipline. And in doing that I present students with a list of questions that they should be asking of materials they read (cases, statutes, scholarly texts) as a means to stimulate critical thinking:

–        Why is the law this way?

–        Who stands to gain?

–        Who loses?

–        What does the law as is miss? What are its blind spots?

–        What do other people do faced with similar legal problems, and why? Can we learn lessons there?

–        When was this case decided? What was the broader context around this case?

–        What was the court / law-maker trying to say between the lines?

–        Who is the court / law-maker (white, male, property owner)?

–        What is this legal statement / assertion / rule a reaction to?

–        How does the private affect the public (and vice-versa)?

 

That strikes me as a fairly useful checklist to spark critical thinking, on the models above. But are there other ways of doing that in law teaching? Let me hear your thoughts!

 

 

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