SOCRATES AND CONFUCIUS: A LONG HISTORY OF INFORMATION TECHNOLOGY IN LEGAL EDUCATION

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Cite as: Paliwala A., “Socrates and confucius: a long history of information technology in legal education”, in European Journal of Law and Technology, Vol. 1, Issue 1, 2010.

Abstract

This chapter examines the history of technology in legal education and considers the ways in which the sages Socrates, Confucius and the medieval inventors of the lecture have been the iconic stimulators of methodologies of eLearning. It argues that earlier ventures into information technology in legal education were influenced either by the Langdellian/Socratic 'case method' or the 'lecture method'. Subsequent more innovative forms of eLearning have been inspired by the student centred and holistic Realist, Deweyan methodologies which have similarities with Confucian methodologies.

1 Introduction

Legal education inherited the 'Socratic method' from the great Greek philosopher via the writings of Plato. This extended quote from Marshall's interesting essay indicates the essence of Socratic dialogue:

As recounted by Plato, the dialogs of Socrates have a fixed form, structure, and purpose. All related to a distinctive theory of knowledge, a theory which may sound strange to modern ears. As to form, Socrates asked a series of related questions and the student answered them. Each question was responsive to the student answer to the preceding question. Most noteworthy, for present purposes, was Socrates' invariant adherence to questions; he rarely made a declarative statement. As to structure, the typical Socratic dialog had four stages. In the first, Socrates asked questions until a student answer contained an assertion which Socrates deemed a misconception. In the second, Socrates asked a series of questions designed to lead the student step by step toward realization that his statement was erroneous and why. The third stage was the discovery and acknowledgment by the student that his statement was misconceived. In the fourth, Socrates asked a final series of questions which helped the student discover the relevant valid assertion. As to purpose, Socrates' dialogs were a form of moral education, the purpose being to discover ethical truth and thereby induce virtuous behavior. (One of Socrates' questionable substantive beliefs was that if men know virtue, they will act virtuously.) Since Socrates' goal was moral education, his dialogs always dealt with the validity of large propositions. As to his epistemology, Socrates believed a person's soul contains all ethical knowledge. Teaching ethical truths is, therefore, simply a matter of finding the questions that were keys to unlock the soul and allow the student to discover knowledge he always possessed. [2]

Langdell used the 'Socratic case method' at Harvard Law School to produce a fundamental transformation in United States legal education. [3] However, though Langdellian method had the key element of question and answer, Marshall suggests that it had a greater similarity to Protagoras, who unlike Socrates, did not rely exclusively on the question and answer method. [4]Protagoras developed an argument using declaratory statements as feedback mechanisms and bases from which the argument could move further. In this respect the typical Langdellian question, answer and feedback system is more similar to Protagorian method. The Langdellian method was also different from the Socratic in its epistemology as it was not really a process of ethical self-discovery but akin to training in argument towards a more external process of discovery of the structure of law. [5]

The case method had its own technological environment to make it successful in the modern era. The students were sat in regular seating where they could be recognized for the question. Langdell's key innovation was the 'Casebook' which contained the reports of cases on which the question and answer session was based and which the student was required to read in advance of the class. The student's learning process involved understanding the case and responding to the challenging questions of the tutor, followed by a collective and personal synthesis. The Langdellian Socratic method obscured significant issues. A key criticism was that the case method by concentrating on the judicial decision, reified the decision and abstracted it away from the real life of the law. For these reasons the method was challenged by pragmatists, realists, sociologists of law and critical legal scholars. [6]

Nevertheless, the Langdellian emphasis on dialogue contrasted remarkably with European doctrinal study in which the central learning activity is the lecture. The lecture was a medieval collective reading of a scarce text which has lasted into modern and post-modern times even when books and materials have become readily available. [7]The lecturer provides an explanation and analysis of the principles of law from her/his perspective. The lecture is essentially a speech act with essential technology including the text and the lecturer's notes. Subsequently, chalk/blackboard, pen/whiteboard and overhead projection slides were used for illustration. Once it was possible to hand out the lecture notes or to even to upload them on the website, the value of this form of instruction became questionable. The essential learning principle was that of oral transmission of knowledge and student's passive acquisition through listening, note taking and reading. Occasionally, the lecturer provided opportunity for students to ask questions at the end. But in practice this was and continues to be a rare event.

This method was ameliorated in some institutions by the additional tutorial. The Oxford and Cambridge model of the tutorial was based on the student being given a set question to write an essay on. This was then presented to the tutor on a weekly or other periodic basis in a tutorial involving one or two students. There followed comments by the tutor and a series of questions and answers reminiscent of the Socratic/Protagoran method. As education massified the tutorial evolved in law schools to a problem solving exercise involving a larger number of students who would come prepared to discuss issues or solve hypothetical legal problems set for the class. [8]On continental Europe, in many countries very large classes in law prevented a similar development of the tutorial system.

The lecture (with or without tutorials) has survived as the dominant teaching mode until today. The main technological change has been the use of PowerPoint slides for illustration instead of chalk on blackboard.

Several hundred years before Socrates, Confucius was developing different principles of learning. In many ways he stands as the original educational innovator. Confucianism's reputation for favouring authoritarian patriarchal hierarchy and for rote learning is based on a subversion of Confucian principles in the Han period in which the rulers developed their own version of Confucianism based on an amalgam of the thoughts of Confucius and of the Legalist school. [10]In practice Confucius was the innovative pioneer of education with many of the principles of learning which are favoured by contemporary scholars. As with Socrates, whose work comes to us largely through Plato, Confucius's work survives through the memory of his students and is reproduced in a variety of works of which the Analects are the most significant. [11]However, key aspects of his approach can be summarized thus:

Even more significant in our context was the learning method. As with Socrates, the method was dialogical, but it was as much the students who asked the question and the sage who elaborated:

Adept Kung asked: 'Is there any one word that could guide a person throughout life?'

The Master replied: 'How about 'shu' [reciprocity]: never impose on others what you would not choose for yourself?' [19]

In the Socratic method, the teacher asks the question and the student has to respond in terms which might be appreciated by the teacher. In the Confucian method, as in the above example, the student asks the question in terms of their unique search for knowledge and personal strength. The teacher responds in terms of the student's own separate learning needs and in ways which might create new lines of reflection and inquiry. The resultant learning process is student centred and at the same time respectful of the authority of the teacher.

An equally significant aspect of the Confucian method was its anchoring in the context. Confucius was the original innovator of learning in the field. Chinese philosophy also escaped the Platonic distinction between mind and body as subsequently emphasized by Descartes.

Finally, Confucius' emphasis on creating 'educated moral persons who would contribute to the well being of society and the state' provide the foundation of ethical legal education.

While the Socratic (or Protagoran) tradition may have inspired the case method, it cannot be said that Confucius inspired the alternatives. And yet, the alternatives are presciently present in Confucian method. There is a remarkable link between Confucian ideas and those of the pragmatist Dewey:

Both philosophers seek a category which can embrace in the widest possible terms the richest view of human existence. Dewey calls it experience. Confucius calls his fundamental category 'the way' or 'the dao'. It too depends on the act of undergoing experience. [21]

Interestingly, Dewey spent two years in China between 1919-21 during which time he was given the accolade of 'the Second Confucius', but makes no mention of Confucius in his work. [22]In many respects, Dewey's pragmatism is the counterpoint to Langdell's positivism and inspired key figures (such as Llwellyn and Patterson) in the realist movement which formed the critique of the case method. Dewey was at Columbia at the time of the Columbia curriculum reform project and was an inspirational figure for the realist movement including Karl Llwellyn. [23]However, Maharg suggests that the failure of the Columbia reforms was due to focusing on the broadening of curriculum content rather than on teaching method. [24]Nevertheless, over the years the realist approach has formed the counterpoint to the case method and significant developments in both curriculum content and teaching methods including the development of clinical legal education including live and simulated clinics and client-counseling, [25] problem-based learning, mooting and role-play [26] and student research projects together with a wider study of law in its political, economic and sociological context were all inspired by the seismic tremors of realism. If Socrates and Protagoras were, through Langdell, the progenitors of the case method, then Confucius and Dewey have the closest links to the counterpoint.

Both methods can be contrasted with the lecture method. The lecture method does not demand an engagement from the student; the student can be passive, although the supplementary tutorial ameliorates this passivity especially when used with the problem-based method. The case method involves interrogation of the student with the potential for ritual humiliation of the passive student. The Confucian method also demands that the student asks questions and the teacher has to be able to respond. The difference between the lecture and case methods on the one hand and the Confucian method on the other is that whereas in the former it is the teacher who sets the agenda and transmits the knowledge, in the latter it is the student who defines her learning needs. Confucian method is also different in being more holistic in engaging with the nature of both the actual student and the real world of consequences.

This chapter considers the ways in which Socratic, lecture and Confucian approaches have been the iconic stimulators of the historical development of technology in legal education. The argument is that earlier ventures into information technology in legal education were influenced either by the Langdellian Socratic or lecture methods. More innovative approaches have much to gain from the student centred and holistic Realist Deweyan and original Confucian methodologies.

2 The age of CAL - eSocrates?

Inevitably, the US led the way in the development of information technology in legal education. Not surprisingly, the Langdellian case method in the US would translate itself into the dominant form of Computer Assisted Learning. The critical form in the achievement of translation was the 'feedback system' of Statement-Question-Answer-Feedback-Statement. This was of course more Protagorean than Socratic in the sense that Socrates would have expected Question-Answer-Question. This 'feedback system' was invented for law by John Kelso's hard copy 'Program Books' in the sixties. Whereas Kelso's system was a linear sequence of questions and answers, Robert Keeton of Harvard's system developed different branches depending on student answers. [27]It was therefore not surprising that early experimenters with Computer Assisted Instruction (CAI) or Learning (CAL) in Law in the 1970s at Illinois, Minnesota and Cornell would use the same idea of the feedback system, especially as Keeton was involved in the key collaboration with Park and Burris at Minnesota. [28]This collaboration led to the formation of the Center for Computer Aided Legal Instruction (CALI) which currently includes over 200 US law schools. [29]

While the dominant form of the computer 'lessons' was the classic Langdellian case method, from the beginning it was perceived that the feedback system could be applied equally well to learning legal processes. For example, a criminal process scenario could be presented to a student, the system would ask a question about whether an arrest could be made, the student would answer, feedback would follow and the system would move onto the scenario about the next stage of the process. [30]

It was soon realised that process scenarios operate much better in a multimedia environment. Video-Disc based systems were developed in the US and UK which involved filmed court room or legal process scenarios after which the student was asked questions about the action taking place onscreen. Unfortunately, these systems were difficult to set up for academics and students alike. [31]On the other hand, the CALI lessons were delivered on law school networks and could be accessed easily.

In the United Kingdom Jones, Parkes, Young and Widdison developed interactive tutorials using very similar techniques in the late 1970's with the difference that it was the problem scenario normally used in UK law school tutorials. In particular, Jones used the US CALI-Author to develop courseware. The CALI model was emulated by the formation of BILETA, the Law Technology Centre and the Law Courseware Consortium to ensure unity and support in the development and distribution of courseware. [32]

In England and Scotland, the Law Courseware Consortium used the US model with the Feedback Loop. However, meetings with interested authors, a number of research projects, our own investigations and differences in UK academic culture led to differences in the resulting Iolis Courseware. [33]It was decided to develop teaching materials for all the core courses in the LLB curriculum for maximum impact. The Feedback Loop was a key idea, but the courseware was modelled on the 'tutorial' rather than the European lecture or Socratic class. Yet, tutorials were not uniform. It was recognised that authors varied in their pedagogic approaches from black letter to contextual learning, legal problem solving methods to inquiries about conceptual or theoretical understanding, linear Feedback Loops to branching out. Authors developed their own approaches, but some coherence was provided through coordination between course teams.

These pedagogic imperatives involved moving away from the CALI Author type standalone multiple-choice system in order to develop an entirely new learning environment called Iolis with components including:

Thus, Iolis went beyond the Feedback Loop through promoting different ways of learning in an environment which emphasised student learning rather than teaching.

In the United States, the absence of the Casebook element in the e-translation of the case method was partially filled in the 1990s with the development of the electronic Casebook. [34]It was the laptop which made the e-Casebook possible. In the innovative Chicago-Kent classrooms, the students could use their laptops in the classroom and Ron Staudt tailored his classes to enable this. Students could make notes as well as pursue hypertext links and answer questions. They were also given an exercise to develop their own e-Casebook sections. More recent scholars have attempted to integrate the vision of the CALI lesson with Staudt's broad vision of the e-book. Diana Donahoe suggests (2009):

Technological advances such as TeachingLaw.com illustrate the paradigm shift in legal education by providing interactive, online, multimedia materials instead of linear text for reading assignments. This tool - and others that will inevitably follow it - will integrate the students' learning style into the classroom to make for a more exciting, inviting and invigorating experience for the students and redefine the professors' role in the learning process to allow for more creative pedagogical methods. [35]

However, the typical e-Casebook does not go beyond being an e-version of the paper casebook, and it is clear that the pressure from publishers will be strong to use the new technology to do little more than to put text on screen with the advantages of hypertext, searchability and note-taking facilities; pressure which will grow with the limitations of e-readers such as Kindle and Sony. [36]

European Civil law countries did not develop a comparable strong tradition in eLearning until recently. This was largely due to the prevalence of the lecture tradition in Europe and the difficulty until recently of providing large classes of students with access to IT. It is thus not surprising that one of the earliest law 'Feedback Loop' learning packages would be developed in a post-graduate business school in France.[37]Similarly there were interesting experiments with artificial intelligence (AI-CAL) in Heidelberg [38] and Amsterdam. [39]In both cases, the experiments were part of wider AI projects. The Heidelberg project involved the potential of AI to provide student modelling for individualised instruction. [40]The Amsterdam PROSA project involved AI techniques for problem solving. It was not until the Web age that eLearning finally took off in continental Europe with a range of eLearning applications. Max Herberger at Saarland was an early starter and has developed a sophisticated web portal for eLearning. [41]A more interesting project has been the EU funded collaborative eLearning project involving a number of law schools led by Fernando Galindo. [42]However, in all these web based projects, the emphasis is not so much on the case method Feedback Loop but on putting primary and secondary materials on the web and promoting interactive discussion. What is being replicated on the web is the 'lecture mode' a mode which has asserted its dominance in e-learning worldwide. [43]The reason for its ubiquity is simple. It is easy to develop course websites using lecture notes and text-based learning materials, a method linked to the lecture mode.

3 Realism and pragmatism: an e-Confucian legacy?

We noted earlier the realist critique was that the case method ignored the real experience of law and in this there was much common ground between Lewellyn's realism and Dewey's pragmatism. Confucius also favoured learning in the field. [44]The idea of clinical legal education emerged from this realist-pragmatist concern with experiential learning and became a strong movement in the United States in the 1970s, but spread more fitfully subsequently to the UK and British Commonwealth countries. Kolb and Schön rationalised the realist/pragmatist understanding into an experiential learning cycle of concrete experience, reflective observation, abstract conceptualisation and active experiment. [45] The clinical movement's focus was on live clinics where students provided legal advice under supervision of lawyers. However, the problems of resourcing clinics soon surfaced. Would or could information technology provide an answer to these problems? It attempted to do this in two ways. The first was to computerise the law clinic. In the US Staudt and Sprowl were involved in an early law clinic computerisation experiment in which the computer was used to develop a variety of documents. [46]

This was followed by Harvard's Pericles Project. [47]In the UK the Warwick Legal Practice Office System's emphasis was more on developing an environment where clinical students could work in groups and be supervised electronically than on modelling documents. [48]

The development of the web provided a new impetus for law clinics. The Alternative Law Forum of Bangalore in India is an example of the way in which law clinics can use the internet in exciting new ways:

Over the past few years ALF has grown from being a legal service provider to becoming a space that integrates alternative lawyering with critical research, alternative dispute resolution, pedagogic interventions and more generally maintaining sustained legal interventions in various social issues. We are also committed to an inter-disciplinary interrogation of the law using creative forms. [49]

The clinic has close links with a number of law schools including the National Law School in Bangalore. It has been able to use the web as a communicative resource and street law and pedagogical space to transcend resource limitations and the vast geographical space of India and operate both locally and nationally, for example in collaborating in the recent successful constitutional case on homosexual rights in the Supreme Court. [50]

The web ought to be ideally suited to the development of collaboration between law clinics to enable them to develop and share resources and enable an effective division of labour. The initial promise was strong as in collaboration between Theresa Player of San Diego, Mike Norwood of New Mexico and Robert Siebel of CUNY which developed common teaching of clinical programs. [51]Unfortunately this project has remained experimental.

The other resource saving route of simulated clinics was ripe for the development of IT based strategies. The pedagogic difference between 'live' clinics and 'simulated' ones is that while the former can benefit from the creative chaos of experiential learning, the latter benefits from more planned pedagogic aims and outcomes. [52]However, the potential of virtual worlds provides the possibility of producing the creative chaos of the live clinic without some of the transaction costs of live clinics. Unlike problem solving and problem-based learning exercises in which the participant, however intellectually engaged is still a voyeur, the simulated virtual world makes the student an active participant responding to a variety of stimuli. 'No longer are you the audience, you are a player on the stage and what you do affects other players and outcomes' [53]The virtual world of Ardcalloch at the Glasgow Graduate School and subsequently its attempted translation with the assistance of the UKCLE supported Simple and Simulation OER projects to law schools throughout the UK and internationally provides a transformative potential for legal education. Maharg describes the virtual legal world as follows:

The lessons of the UKCLE attempts at generalisation are interesting; perhaps the most important is that development of virtual legal spaces requires considerable learning time, methodological reflection and technical support.

… (T)he aspect that worked best was the sense of professionalism the students got from working in SIMPLE…..The initial aim was to use SIMPLE to manage the simulations that had been running at Warwick for a number of years. By and large this aim was met, but the professors' view of SIMPLE changed during the course of the project. From thinking of it as being driven by or all about the virtual town they came to realise that in fact the town could be dispensed with the importance of SIMPLE lies in its potential for managing communications and transactions. [55]

4 Convergent communications and transactions

This management of communications and transactions may be one of the virtual world's key contributions to learning; the other being access to information. Digitalisation has led to the convergence of information and communication systems with resulting integration of vast databases of text-based information with sound, pictures and video. Delivery mechanisms have also become both integrated and diverse with a variety of devices such as desktops, laptops, TV sets, palmtops, phones, MP3 players all being able to handle the converged information in a variety of forms email, voicemail, videomail, SMS text, Facebook, twitter, audio and video-conferencing, webcasts etc. delivered via digital communication systems. This convergence has enhanced the virtual simulation of legal transactions in Ardcalloch/SIMPLE, but the creation of virtual worlds such as Second Life has also enabled potential virtual classrooms. Finally, the internet has not merely facilitated the convergence of media and information systems, but has provided a matrix for their relative democratization. [56]The growth of social networking is dependent on dissolving the space between authors and readers, and as Coombe suggests, the flowering of collaborative authoring. [57] We therefore live in a period of transformation of the geography of learning. The classroom is beginning to transcend the talk, chalk and Casebook/Textbook culture with the invasion of multimedia learning resources. At the same time, learning and teaching can transcend the classroom and become ubiquitous and even take place in virtual worlds.

This new context is therefore transformative of the relationship between student and teacher. This transformation affects the different modes of learning and teaching in different ways. The centrality of communication is lacking in the lecture method. However, as we have noted, even the passivity of the 'lecture' was ameliorated in many legal traditions by the 'tutorial' which used a variety of discussion or problem solving techniques. The Langdellian (Socratic) mode can benefit from the centrality of communicative interaction but in systems in which the teacher asks the questions and presumably controls the answer, there is potential for instability. The Realist/Pragmatist (Confucian) methods also emphasise communicative interaction, but the emphasis is on contextual and student learning. The Confucian notion that the student asks the question in her search for self-illumination provides significant potential for creative application of the convergent media. These concepts of self illumination and contextual learning are reinforced by pedagogical shifts which emphasise active, student-centred and situated learning. [58]Thus while all three approaches benefit from the new developments, they respond in different ways.

4.1 Electronic information

The development of electronic databases provided the potential for access to vast electronic libraries. Bing and Greenleaf in this volume have outlined the history of the development of legal information retrieval including the development of commercial systems such as LEXIS/NEXIS and Westlaw and the equally significant free and open access systems developed by the global Legal Information Institutes such as Cornell's LII, AustLII and WorldLII. Students and teachers now have the basis for much wider exploration of knowledge. The previous relationship between student and teacher was constructed by the textbook and the casebook. Previously the student was free to explore the library for further information, but this was difficult and cumbersome with each library having access to very limited resources. Law students now had potential freedom to explore their own world of law instead of always being confined within the parameters of the text or casebook. Two significant navigational innovations fundamentally transformed the nature of this task: the key word search and hypertext. [59]However, there were various obstacles in the way of student use of information technology. For example, while most UK law schools subscribed to LEXIS/NEXIS, the connect time based charging and access systems meant that for a long time students were only given access to learn the system and not to use it actively in their research. [60]The position was different in the US where competition between LEXIS/NEXIS and Westlaw led to favourable charging systems for law schools which provided free access to students. The development of worldwide free legal information retrieval systems transformed the situation for students worldwide, subject to two constraining factors. Firstly, access to digital information continues to be uneven especially in developing countries. More significantly, systems of teaching, learning and assessment are still by and large dependent on the textbook mode and do not encourage students to explore the law. This is particularly true of examination based assessment systems which discourage independent learning. [61]On the other hand, systems of teaching which involve a greater element of student exploration, for example through the writing of research projects and dissertations can benefit greatly from the freedom to learn.

4.2 The course website as a learning tool

The rise of multimedia and the ability to deliver this in a variety of formats including initially on CD and subsequently through web or pod-casting meant that students could now download relevant material on whatever technology devices they were using including MP3 systems. This transformed the course website from being a mere purveyor of lecture notes and notices to a real learning resource for students to explore and download relevant texts and audios and videos of lectures. [62]The growth of email and other forms of discussion put a further strain on websites and produced a need for management obvious in this early example of an online course by Lessig, Post and Volokh:

Welcome to the Cyberspace Law for Non-Lawyers electronic course. As with a 'real' course in the 'real world,' let's begin with a few logistical details. You can expect one email message every Monday, Wednesday, and Friday for the duration of the course. Each message should be no more than two four individual screens or so. We anticipate that the course will last for approximately three months. Please note that this course is running on a one-way listserver; do not reply to any of the messages you receive, for your replies will not be transmitted anywhere (and will simply clog up the listserver).We have, however, made arrangements with Counsel Connect and CourtTV to post all of our course material on a World Wide Web site; the URL is http://www.counsel.com/cyberspace. This site includes a discussion function which will allow you, if you are so inclined, to post your own comments and reactions to the individual messages that we have mailed out. [63]

About the same time Peter Martin and Tom Bruce were experimenting with the delivery of online courses involving students at four law schools with an approach which integrated new technologies with Socratic pedagogy:

All of the assigned readings were placed on the Net, at the LII web site. ..Those readings were posted, along with a set of questions and often a problem scenario, at the beginning of each (weekly) course unit. A Web-based conferencing environment provided the means for discussion of the assigned material, generally in the context of one or more problem scenarios. This medium of written exchange was used in fairly typical Socratic fashion by the teacher. A day or two after posting of the unit's reading assignment, the teacher would lead off discussion with a question. Since, in such an asynchronous discussion, multiple threads can be sustained at once, the teacher would often initiate a second or even third line of inquiry before the first had come to rest. This Web-based written exchange led up to a culminating 'real-time' videoconference class, which brought the unit to a close. Twenty-four hours prior to that videoconference, the teacher sent an agenda to the entire class by email. This agenda built on the class discussion carried out in the WebBoard conference, laid out the sequence of principal questions to be pursued in the videoconference class, and identified the schools to which each of those questions would first be addressed. [64]

The Cornell initiative has from the beginning sought to develop best principles and to generalise them within the US dominant Socratic context.[65]A WebBoard conference provided the necessary management of the discussion. Virtual orManaged Learning Environments were developed institutionally, or by commercial providers such as Blackboard or on Freeware basis. [66]

These typically include the syllabus and learning objectives, course readings which are increasingly hypertext deep-linked to relevant websites, lecture notes or the audio or video casts of the lecture or of other relevant material, exercises and a space for discussion. Video-lecture technology involves a video of the lecturer's delivery, together with a written transcript, PowerPoint slides and relevant bibliography. [67]

In the United Kingdom, the University of Strathclyde developed an online distance learning LLM course on Information Technology Law in 1994 using a combination of course notes, electronic materials and discussion. [68]In continental Europe, the earliest and consistent innovators were Herberger and Scheuerman at the University of Saarland which subsequently developed into collaboration with the University of Innsbruck. [69]These early beginnings have resulted in a mushrooming of online learning on a worldwide basis without yet being effective competition for onsite learning. [70]

While these initiatives were specifically aimed at online delivery of courses, the use of online communications has also had an impact on onsite learning. Discussion groups have varied from just a space on the website to more organised blogs which contain information in multimedia format as well as discussion. The development of blogging and of Wikis transforms the experience from being merely the online equivalent of participation in classroom discussion to the development of collaborative authoring and learning. Wikis are a key collaborative authoring resource and are being used in North America and Europe:

The pedagogic literature is unambiguous in its recommendation of activist and engaged modes of learning. We ought to teach students, not only how to read wikis critically and check facts, but how to write them. Instead of forbidding access to Wikipedia, why not require students to edit or write an entry? Let them be producers, not just consumers of knowledge! [71]

The UK Centre for Legal Education has an advice note on the use of Wikis in class:

Wikis can be used in many ways in legal education. At any point in your subject or module where you think you might want students to construct a knowledge base, or to collaborate with each other over the Web, then a Wiki is an ideal tool. You might want students to work on a collaborative drafting project in a module on constitutional law, for instance, or to draft a contract collaboratively, or to develop a knowledge base for a particular audience. Wikis can thus be used for formative feedback, where tutors can give feedback on work in draft form. They can also be used for summative assessment, where the final product is submitted for high-stakes assessment. Wikis can also be used by teachers for more instructional uses, where short articles or comments are generated by a teacher and made available for a class. Such resources may be used as background reading to lectures, tutorials, workshops, student activities, etc. [72]

It has even been suggested that collaborative student power could be employed to create wikis to assist the legal professions as well as the public. [73]

Online legal education has been typically modelled on the traditional lecture tutorial idea with the 'tutorial' element being constituted largely by exercises and online discussion groups. This contrasts with Cornell's careful approach to integrate the Socratic Method. On the other hand, as we have seen with Ardcalloch some of the most innovative developments took place in the context of realist pragmatist approaches to learning. Electronic communication is ideally suited to negotiation. Negotiation exercises were established between Warwick and the universities of Hawaii and Alberta. [74]Bill Boyd of Arizona innovatively used video-conferencing to make the experience of the students more real. [75]In exercises between the EDHEC business school in France and Warwick Law School, the students combined the use of e-conferencing facilities in the early negotiation stage with a final negotiation taking place on video. [76]Much more sophisticated systems have been developed combining information tasks with communication. The Common Law I course at Lancaster and the Delict Game at Strathclyde and Glasgow Caledonian became precursors of the Ardcalloch/Simple projects in which students were organised into teams of lawyers who negotiated specific cases on behalf of clients. [77]

4.3 The transformation of the classroom

Electronic learning activities take place in the main in an extra-classroom context, whether they are CAL tutorials, the exploration of information systems on the web, listening to or watching audio or video casts, or engaging in a simulation or live practice. In this respect, the growth of e-learning impinges on classroom learning. Yet, law professors still deliver lectures, whether Socratic or traditional. Law students still attend them. Many if not most of the classes still take place in the traditional chalk and talk mode. [78]However, the orthodoxy of the lecture is changing in a number of ways. According to Thomas in 2000 US law schools typically had whiteboards and pens, poster boards, overhead projectors, multimedia projection facilities for intra- and internet linked laptops, video, TV and audio; laptops and internet connections for each student and in many cases video-conferencing facilities. [79]These facilities have become more ubiquitous in developed countries. With the growth of wireless networking, nearly all students can bring their laptops into class. In principle, this means that in a Socratic lecture, the students can all see a case report or legislation both projected on screen and on their own laptops. They might even explore other cases before answering the question.

However, more creative uses of the technologies are possible. Multimedia and the existence of YouTube enables real events to be brought into the class room - for example, observing a legal dispute and interviews with personnel involved. Videoconferencing can also be used for 'guest appearances'. The typical 'lecture' classroom with its tiered seating does not promote interactivity. The Socratic classroom is more suited to individual interrogation with its rows of allocated seating. The physical space of the classroom also changes with the development of new interactive and group modes of learning with scope for student presentations and role play. [80]In Taiwan, Amy Shee has used classroom technology developed at MIT to enable students to work in groups around round tables, but with facility to project their work on a number of screens which can be viewed by the whole large group. [81]

But as technology promotes virtual conditions, can the classroom be located in virtual space? Ardcalloch/SIMPLE of course do this, but only in the context of simulated negotiation. The existence of virtual worlds such as Second Life permits the class to take place within the virtual world. [82]

5 Conclusion

This chapter has suggested that the history of eLearning can be explored in terms of the way in which the development and adaptation of learning technologies for legal education has been influenced by prevailing pedagogies. These prevailing pedagogies have been classified into three - the Langdellian (Socratic) case method, the Realist/Pragmatic (Confucian) method and the lecture/tutorial method. In particular, the influence of these approaches can be seen in the predominant attempt to use the case method courseware in early US development of computer assisted learning, an approach which was subsequently borrowed (with modifications) in the UK to suit its more common lecture/tutorial method. The Realist/Pragmatic critique in the US led to the development of alternatives of which the law clinic was a typical example with early emphasis on computerisation of live clinics. Subsequently simulated clinics developed of which the Ardcalloch/SIMPLE systems are the most exciting examples. Yet, while both the CAL and clinical approaches provide the high end of learning, the prevailing orthodoxy has focused on IT either being used as a supplement or an emulation of the lecture method with typical websites focusing on lecture notes, readings and discussion forum.

An obvious way of looking at this mix is to suggest a pluralism of approaches. In many instances, good learning using IT does require blended learning. [83]Thus, the Ardcalloch/SIMPLE approach involves an amalgam of personal contact sessions, a website of materials and e-lectures as the matrix within which the virtual community can operate. In the consideration of the appropriate mix, issues such as the availability of resources, the culture of the academics and students are of vital importance. Nevertheless, the underlying pedagogical issues have to be given effective consideration if technology is to fulfil its potential for transforming legal learning.

In some respects the idea of IT in education having a long history has obvious problems. Yet, linking Confucius and Socrates as two innovative reformers of learning is useful to emphasise that the underlying pedagogical issues shape all technological eras of learning. There is of course an obvious connection between Socrates (or rather Protagoras) and the Langdellian case method, even though the method is narrower than what Socrates would have liked. The connection between Confucius, Dewey and the Realists is relevant only in the sense that they signify pedagogical alternatives to the orthodoxy of the lecture method and the Langdellian case method. However, ideas such as those of Confucius are also relevant because of their strong influence in a major part of the world of learning and counteract Western ethnocentrism. In this respect the educational ideas of Indian and Islamic philosophers are equally significant. [84]However, there is a pragmatic significance to the role of Confucius. In Taiwan the Centre for Legal ELearning and Interactive Teaching has rightly considered that in the Eastern context, learning technologies have to be created and adapted within the cultural context if they are to be effective. [85]Thus was born the idea of e-Confucius, a notion whose cultural richness provides surprising scope for technological creativity. [86]

[1] Professor Abdul Paliwala, University of Warwick [email protected] . My thanks to Adam Blaxter Paliwala for his assistance.

[2] D. Marshall, 'Socratic Method and the irreducible core of legal education' (2005) 90 (1) Minnesota Law Review 1.

[3] While Langdell was the inventor of the case method, the Socratic approach was an earlier innovation of Dwight of Columbia. S. Sheppard, 'Casebooks, commentaries and curmudgeons: an introductory history of law in the lecture hall' (1997) 82 Iowa L. Rev. 547, 585; R. Alford, 'How do you trim the seamless Web? Considering the unintended consequences of pedagogical alterations' (2009) 77 U. Cin. L. Rev. 1273 at 1274.

[6] See, for example, E. Rubin 'What's wrong with Langdell's method: and what to do about it' (2007) 60 Vand. L. Rev. 609; P. Maharg Transforming Legal Education, op.cit., Ch 3. W. Twining Karl Lewellyn and the Realist Movement (London:Weidenfeld and Nicholson 1973).

[7] D. Bligh What's the use of lectures? (San Francisco: Jossey-Bass, 2000); A. Gayles 'Lectures v discussion' (1966) 14:2 Improving College and University Teaching, 95-99. P. Thomas 'Learning about law lecturing' (2000) NCLE Guidance Note. http://www.ukcle.ac.uk/resources/thomas.html

[10] Grange J. John Dewey, Confucius and Global Philosophy (New York: SUNY Press 2004). G. Ng 'From Confucian master teacher to Freireian mutual learner: challenges in pedagogical practice and religious education' (2000) 95:3 Religious Education 308-319. A growing number of contemporary Eastern authors, including feminists, consider that the original Confucian principles were subverted in the post-Confucian power politics. See, for example, E. Koh 'Gender issues and Confucian scriptures: is Confucianism incompatible with gender equality in South Korea?' (2008) 71:2 Bulletin of SOAS 345-362. On the other hand, a considerable amount of literature assumes Confucianism to be hierarchical, authoritarian and based on rote learning. This of course represents the reality of much current learning practice in East Asia. For a recent example of this see J. Kim 'Socrates v Confucius: an analysis of South Korea's implementation of the American law school model' (2009) 10:2 Asia Pacific Law & Policy Journal 322-352.

[11] Confucius Analects or Lun Yu. The main translations are: A. Waley The Analects, (Beijing: Foreign Language Teaching 1999); Confucius Lunyu (In English The Analects of Confucius), translation and notes by Simon Leys (New York: W.W. Norton); E. Singerland Confucius: Analects - With Selections from Traditional Commentaries (Indianapolis: Hackett Publishing 2003); E. and A. Brooks, The Original Analects (NewYork: Columbia University Press 1998).

[12] 'He who learns but does not think is lost. He who thinks but does not learn is in great danger.' (Lunyu 2.15) 'The way of great learning consists in illuminating innate virtues.' Opening Statement of Great Learning; 'Self-illuminative sincerity is called nature. The self-illumination of sincerity is called education.' Confucius The Doctrine of the Mean 21 (Cambridge ma: MIT Internet Classics Archive) classics.mit.edu/Confucius/doctmean.html

[17] Lo Yuet-Koing, 'Observation: on the experiential basis, approach, and character of Confucius thought' (2005:1) Tsing Hua Journal of Chinese Studies 73-102.

[18] A. Ng 'From Confucian master teacher to Freirian mutual learner: challenges in pedagogical practice and religious education' (2000) 95:3 Religious Education 308-319.

[27] R. Burris et al Teaching Law with Computers, (Boulder, Colorado: Westview 1979); R. Staudt 'In search of the origins of the electronic casebook' (1999) 1 Journal of Law School Computing http://works.bepress.com/ronald_staudt/5/ (visited 11-October-09).

[28] P. Maggs and T. Morgan 'Computer-based legal education at the University of Illinois: a report of two years' experience' (1975) 27 J . Leg. Educ. 138-144; H. Henn and R. Platt 'Computer-assisted legal instruction: clinical education's bionic sibling' (1977) 28 J. of Leg. Educ. 423-36; R. Park 'How can the law professor best use computer-aided exercises?', in Burris et al., op. cit. 13, 19; M. Geist 'Where can you go today? The computerization of legal education from Workbooks to the Web' (1997) 11 Harv.J.Law &Tech 141; Burris, Ibid.

[31] D. Burnstein 'Boyd V. Deaver - Litigation Strategies' videodisc: an opportunity to improve curriculum and prototype expert systems' (1989) Proceedings of the 2nd international conference on Artificial intelligence and law. http://portal.acm. org/citation.cfm?id=74041; D. Clark, 'The paper case' (1991) Proceedings of the 6th BILETA Conference on Technology in Legal Education http://portal.acm.org/citation. cfm?id=74041.

[32] A. Paliwala, 'Creating an academic environment: the development of technology in legal education in the United Kingdom' (1991) 5 Yearbook of Law, Computers and Technology 136.

[33] R.Widdison (1995) 'Law courseware: big bang or damp squib?' (1995) 4 Web Journal of Current Legal Issues http://webjcli.ncl.ac.uk/articles4/widdis4.html ; H. Collins 'The place of computers in legal education' (1994) 3 (3) Law Technology Journal, 6, 1994. Also in P Birks ed. Reviewing Legal Education (Oxford: OUP 1994); A. Paliwala 'Learning in cyberspace' op. cit.

[34] R. Staudt (1999) op. cit. R. Staudt 'An essay on electronic casebooks: my pursuit of the paperless chase' (1992) 68 Chicago-Kent Law Review 291. http://interactivecasebook.com/about.aspx .

[37] CAL project by Christophe Collard and Cristophe Roquilly, EDHEC Business School 1988.

[38] F. Haft and R. Jones 'A natural language based legal expert system for consultation and tutoring - the LEX project' (1987) Proceedings of the First International Conference on Artificial Intelligence and Law: ACM http://portal.acm. org/citation.cfm?id=41745

[39] See generally Muntjwerff Ibid; Muntjewerff et. al. 'Case analysis and storage environment - CASE, in D. Bourcier (ed.) Legal Knowledge and Information Systems (Amsterdam: JURIX 2003) 1; A. Muntjewerff 'Evaluating the instructional environment for learning to solve legal cases PROSA', in G. Santana Torrelas (ed.) Computers and Advanced Technology in Education (2002) 374.

[42] The Law & ICT Shared Virtual Campus Project http://courses.lefis.unizar.es/ (visited 10-October-09). See F. Galindo in this volume.

[45] D. Kolb Experiential Learning: Experience as the Source of Learning and Development (New Jersey: Prentice Hall 1984) 25. D. Schön 'Educating the reflective legal practitioner' (1995) 2 Clinical Law Review 231-50.

[46] J. Sprowl and R. Staudt 'Computerizing client services in the law school teaching clinic: an experiment in law office automation' (1981) 3 ABA Foundation Research Journal 699-731.

[47] D. Trautman (1990) 'The computer in American legal education' Law Technology Centre and BILETA Newsletter, 2 (3), 95, 1990.

[48] A. Paliwala and A. Clark 'The technological clinic? Student lecturer interaction at Warwick Law School' (1990) 2:3 LTC & BILETA Newsletter 81.

[50] Alternative Law Forum The Right that Dares to Speak its Name: Naz Foundation v Union of India: Decriminalising Discrimination based on Sexual Identity in India (Bangalore: Alternative Law Forum 2009) http://www.altlawforum. org/gender-and-sexuality/the-377-campaign/The%20right%20that%20Dares%20to% 20Speak%20its%20Name.pdf/view

[52] H. Brayne, N. Duncan and R. Grimes Clinical Legal Education: Active Learning in Your Law School. (London: Blackstone 1998).

[53] P. Maharg Transforming Legal Education: Learning and Teaching in the 21^stCentury (Aldershot: Ashgate 2007)

[54] Ibid, p. 177. On the UKCLE projects, see SIMPLE: innovative learning across the professions http://www.ukcle.ac.uk/research/projects/tle.html and Simulation OER http://www.ukcle.ac.uk/research/projects/oer.html .

[56] See, for example, Y. Benkler The Wealth of Networks: How Social Production Transforms Markets and Freedom (New Haven: Yale University Press 2006) http://www.benkler.org/Benkler_Wealth_Of_Networks.pdf . Y. Benkler 'Freedom in the commons: towards a political economy of information' (2003) Duke Law Journal 52, 1245-1276.

[57] R. Coombe The Cultural Life of Intellectual Properties: Authorship ,Appropriation and the Law (Durham, NC and London: Duke University Press 1998).

[58] See generally, D. Laurillard Rethinking University Teaching: A Conversational Framework for the Effective Use of Learning Technologies (London: Routledge 2002); M. Le Brun and R. Johnson The Quiet Revolution: Improving Student Learning in Law (North Ryde, NSW: Law Book Co 1994); R. Burridge et al. Effective Teaching and Learning in Law (London: Kogan Page 2002); P. Maharg Transforming Legal Education: Learning and Teaching Law in the Early 21^stCentury (London: Ashgate 2007).

[59] R. Jones and J. Scully 'Hypertext within legal education' (1996) 2 The Journal of Information Law and Technology (JILT) http://elj.warwick.ac.uk/jilt/cal/2jones/ .

[60] A. Paliwala 'Creating an academic environment: the development of technology in legal education in the United Kingdom' (1991) 5 Yearbook of Law, Computers and Technology 136.

[61] K. Hinett. and A. Bone 'Diversifying assessment and developing judgment in legal education' in Burridge et al, op. cit.

[62] On the use of multimedia generally, see D. Murley 'Innovative instructional methods' (2007) 26 1-2 Legal Reference Services Quarterly 171-85; on podcasting, see C. Hull 'Podlaw: Developing a portable learning environment to enhance the study of law', UKCLE, 2008 http://www.ukcle.ac.uk/newsevents/lilac/2008/papers/podlaw.html ; D. Murley 'Podcasts and podcasting for law librarians.' (2007) 99Law Library Journal 675-80; C. Sellers 'Are you podcasting? Current uses of podcasts in law libraries' (2007) 11 AALL Spectrum 14.

[66] C. Boussard 'Teaching with technology: is the pedagogical fulcrum shifting?' (2008-9) 53 N.Y. L. Sch. L. Rev 903; M. Barber 'VLEs and their role in UK legal education: an overview' UKCLE Seminar on Teaching and Learning for Legal Skills Trainers, 16 February 2005 UK Centre for Legal Education http://www.ukcle.ac.uk/resources/biall/barber.html ; Using the Virtual Learning Environment in P. Clinch (ed.) Teaching Legal Research UKCLE 2006. http://www.ukcle.ac.uk/resources/tlr/vles.html .

M. Newman 'Not the evil TWEN: How online course management software supports non-linear learning in law schools' (2005) 5 J. High Tech. L. 183.

[67] O. Hutchinson, 'Teaching business students law by virtual means' (2008) Directions http://www.ukcle.ac.uk/directions/previous/issue16/hutchinson.html ; P. McKellar and P. Maharg 'Virtual learning environments: the alternative to the box under the bed.' (2005) 39 The Law Teacher: The International Journal of Legal Education 43-56; D. Murley 'Innovative instructional methods.' (2007) 26 1-2 Legal Reference Services Quarterly 171-85; S. Peppet 'Teaching negotiation using web-based streaming video' (2002) 18 Negotiation Journal 271-83.

[70] D. Shelley et al 'A comparative analysis of online and traditional undergraduate business law classes' International Journal of Information and Communication Technology Education, vol. 3, issue 1; for a list of Indian Law Schools offering online courses see: http://www.successcds.net/Distance-Education/Legal-Education-Distance-Learning-Law.htm l.

[71] B. Noveck 'Wikipedia and the future of legal education' (2007) 57 J. Legal Educ. 3; For an example of use in the Netherlands see E. Hoorn and D. van Hoorn 'Critical assessment of using Wikis in legal education.'(2007) 1 Journal of Information, Law and Technology, http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2007_1/hoorn .

[73] J. Milles 'Redefining open access for the legal information market' (2006) 98 Law Libr. J. 619.

[74] J. Barkai 'Using electronic mail to teach international negotiations and English for special purposes: a win-win educational project' (1992) Available at SSRN: http://ssrn.com/abstract=1435583 (visited 10-October-09).

[75] W. Boyd 'But what is it good for? Using interactive video in legal education and law practice' (1999) (3) The Journal of Information, Law and Technology (JILT). http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1999_3/boyd/ (visited 10-October-2009); also at Subtech 98: International conference on substantive technology in legal education and practice, Stockholm.

[76] C. Roquilly 'Selling fragrances on the Internet: an e-commerce negotiation' (2001) Autumn Directions http://www.ukcle.ac.uk/directions/previous/issue3/roquilly . html; P. Maharg and A. Paliwala 'Negotiating the learning process with electronic resources' in R. Burridge et al (eds.) Effective Teaching and Learning in Law (London: Kogan Page 2002).

[77] S. Bloxham, 'Active Learning: Web-based Negotiation Exercises' Paper presented at the Internet and Law Teaching Seminar, CTI Law Technology Centre, University of Warwick 1998; For a similar web version see http://www.bileta.ac.uk/Document%20Library/1/What%20a%20LUVLE%20way% 20to%20learn%20Law.pdf . C. Steeples and M. Jones, Networked Learning: Perspectives and Issues (Springer: London 2001); J. Blackie and P. Maharg 'The delict game', BILETA Conference (Dublin:Trinity College 1998) http://www.bileta.ac.uk . P. Maharg (2007) op. cit.

[80] A. Paliwala 'Space, time and (e)motions of learning', in Burridge et al (eds.), op. cit. A. Shee 'From Foucaultian bio-power to Confucian respect: lessons from a drama e-course' LILAC Conference 2009 UKCLE. http://www.ukcle.ac.uk/newsevents/lilac/2009/papers/shee.html (visited 10-October-09).

[82] M. Bromby and M. Jones 'Second guessing: is there a context for Second Life in legal education?' LILAC Conference (2009) UKCLE. http://www.ukcle.ac.uk/newsevents/lilac/2009/papers/bromby.html ; M. Bromby and M. Jones 'What shall we do with a Second Life law student?' BILETA Conference, University of Winchester 2009.

[84] For the Gurukula learning system of the Upanishads, see R. Mehta The Call of the Upanishads; For Islamic system of learning law by Disputations see A. Unal and A. Williams (eds.), Advocate of Dialogue: Fethullah Gulen (Fairfax, Va: Fountain Press 2000) 244.

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You are here: BAILII >> Databases >> United Kingdom Journals >> SOCRATES AND CONFUCIUS: A LONG HISTORY OF INFORMATION TECHNOLOGY IN LEGAL EDUCATION \| Paliwala \| European Journal of Law and Technology URL: http://www.bailii.org/uk/other/journals/EJLT/2010/01-1/12.html Cite as: SOCRATES AND CONFUCIUS: A LONG HISTORY OF INFORMATION TECHNOLOGY IN LEGAL EDUCATION , Paliwala , European Journal of Law and Technology

United Kingdom Journals

SOCRATES AND CONFUCIUS: A LONG HISTORY OF INFORMATION TECHNOLOGY IN LEGAL EDUCATION

Abstract

1 Introduction

2 The age of CAL - eSocrates?

3 Realism and pragmatism: an e-Confucian legacy?

4 Convergent communications and transactions

4.1 Electronic information

4.2 The course website as a learning tool

4.3 The transformation of the classroom

5 Conclusion