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PER: Potchefstroomse Elektroniese Regsblad

On-line version ISSN 1727-3781

PER vol.15 n.1 Potchefstroom Jan. 2012

 

ARTICLES

 

The use of a therapeutic jurisprudence approach to the teaching and learning of law to a new generation of law students in South Africa

 

 

E FourieI; E CoetzeeII

IElmarie Fourie. B.Proc ADL LLM. Lecturer, Department of Public Law, University of Johannesburg. Email: esfourie@uj.ac.za
IIEnid Coetzee. BIur LLB LLM Mphil. Lecturer, Department of Private Law, University of Johannesburg. Email: ecoetzee@uj.ac.za

 

 

There is a new generation of students, and we need to continue to expose them to the profession and make an effort to help them be more well-rounded - to help them think, to learn to be lawyers, to understand ethics, to work through the realities of having a professional role and having their own professional appreciation about what is important to them.1

 

1 Introduction

In rapidly changing social, economic and intellectual environments it is imperative that teaching and learning should transform themselves from being primarily concerned with the transmission of knowledge (learning about) to being primarily concerned with the practices of a knowledge domain (learning to be). Law lecturers are faced with a new generation of law students, many of whom may be the first in their families to enter university,2 and one of the important challenges that we face, when educating law students, is how to enable these students to take their place in a very important profession. To meet this challenge it is necessary to instill skills that will be beneficial to the profession, future clients and the community as a whole. We are endeavouring to do so through embracing a therapeutic jurisprudence approach that focuses on the well-being of the student, the client and the community. The concept is explained on the website of the International Network on Therapeutic Jurisprudence as follows:3

[T]herapeutic jurisprudence concentrates on the law's impact on emotional life and psychological wellbeing. It is a perspective that regards the law (rules of law, legal procedures, and roles of legal actors) itself as a social force that often produces therapeutic or anti-therapeutic consequences. It does not suggest that therapeutic concerns are more important than other consequences or factors, but it does suggest that the law's role as a potential therapeutic agent should be recognised and systematically studied.

The integration of therapeutic jurisprudence throughout the law student's studies, starting at orientation and continuing through the final-year clinical experience, will enhance the outcomes for all of the parties involved. A therapeutic jurisprudence approach combined with teaching and learning methods that include the transformation from a primary concern with the transmission of knowledge to a primary concern with the practices of a knowledge domain will enhance the student's interpersonal skills and writing and reading skills.4

Teaching methods include role-play, the purpose of which is to transform knowledge so that it becomes more than a set of half assimilated facts, thereby equipping students with enquiring minds and creating a learning environment that supports collaboration and encourages students to act purposefully in a professional environment.

This article discusses the teaching of first-generation students and how to overcome the existing social, cultural, economic and linguistic barriers, using a therapeutic jurisprudence approach, while upholding guiding values, such as integrity and respect for diversity and human dignity. The constitutional imperative of access to justice for all underlines the importance for law teachers to incorporate therapeutic jurisprudence in their teaching methods from the first year until completion of the students' studies. The therapeutic outcomes achieved by teaching through a therapeutic lens would contribute to the national goal of improving access to justice in our country.

 

2 Contextual factors

2.1  Student profile

Many students start their first year of study without any family support, as they live in rural areas far from the university. Data from 2011 indicates that 46.27% of students are first-generation students. A first-generation student at the University of Johannesburg (UJ) can be described as the first person in his/her family to enter higher education, or a student who has a sibling at university.5 The average first-year student at UJ typically commutes, is a first-generation university entrant and was not a very diligent school pupil.6 As Corrigal7 states, these students carry their own unique brand of baggage in a country that emerged in 1994 from nearly 50 years of apartheid. Young black students living in a post-apartheid society try to meet the high expectations set for them. Many of their parents have sacrificed their own youth to ensure a brighter future for this generation. This student therefore carries a heavy burden as he/she is expected to surpass the previous generation in every way.8

A number of first-generation students are from rural areas and low-income households. These students and their families display a lack of familiarity with and knowledge of campus life, culture, norms and academic expectations.9

2.2  Millennials

Millennials (or the so-called generation Y) display unique characteristics - they are ambitious, demanding,10 seldom follow instructions, are reluctant to use sources other than the internet,11 and crave encouragement and continuous contact with their lecturers.12 Unfortunately, these characteristics are not always ideally suited to the characteristics required of a law student to be successful at university. With their questioning minds and frequent outspokenness, generation Y has certainly required law teachers to rethink their teaching methods, and law teachers should strive to deliver a well-rounded student who meets the requirements of a very competitive legal profession. Typical requirements of the legal profession include skills such as the ability to think analytically, to be persuasive, to present an argument logically and the possession of excellent communication skills.

 

3 Developmental interventions

3.1 The role of orientation for all university entrants

As a result of the general unpreparedness of first-year students, the University of Johannesburg, and more specifically the law faculty, introduced an orientation programme for all first-year students, which programme takes place prior to the commencement of their first academic year. Although orientation plays an important role for all, it provides valuable assistance to first-generation students ill-prepared for the many challenges posed by tertiary education.

During compulsory first-year orientation, students are made familiar with the tertiary institution, student life and services offered. A university which offers one-on-one career advice, academic advising sessions and developmental interventions plays a vital role in enhancing academic success.13

Academic language is another factor that poses a threat to the success of the first-generation student. Concepts relating to the structure of the university (such as "dean", "professor") and other academic concepts such as plagiarism are often foreign concepts to first-year students. Students should therefore be encouraged to develop their language abilities in the academic environment. Learning support, already introduced during orientation and throughout the first year in the form of additional skills workshops,14 innovative teaching practices and continuous assessment practices, plays an important role in the development of these academic language skills.15 Although it is important during the orientation process to introduce students to various academic and social skills, such as taking class notes, getting to know their fellow students, library orientation, the integration of different sources, and computer literacy, the development of skills should be ongoing and not limited to orientation. The orientation process as a social force has an important initial therapeutic outcome, as it focuses on the well-being of the student, thereby making it possible for the student to strive to reach his or her full potential.

3.2 Learning communities and a student-awareness approach

As many of these students do not have a prior link with the university, the establishment of learning communities involving them offers an important aid. Students can engage with other students in the classroom and with tutors (senior law students) and mentors (postgraduate students) to enjoy the benefit of being in an engaging and stimulating environment. Often social networking provides an important tool for supporting learning communities, as students can use electronic communication to pose their questions to a wider audience.

Activities such as mooting can promote learning communities. With this activity, students are divided into groups and have the opportunity to engage with their fellow students and tutors (senior students) in preparing for a final assessment. Tutors can share their knowledge and experiences through mooting, thereby facilitating the social integration of all students in the law faculty. Participants in previous mooting competitions often assist in the mooting preparation of first-year students by offering additional tutorials and other workshops. It is important for students to engage meaningfully and willingly with learning content as part of a broader supportive collaboration within the learning environment. They should also learn to act purposefully in such an environment. By developing and enhancing learning communities, students are helped to overcome both the academic and the personal obstacles they may face at tertiary institutions.

A student-awareness focus is another important factor to consider when one teaches first-generation students. Studies indicate that a holistic approach by advisors, which includes a personal approach by academic staff and peers, produces positive results.16 In the course of this approach first-year students are introduced to their lecturers, administration staff, tutors and second-year students during compulsory first-year orientation. The fact that there are large numbers of first-year students can present difficulties to student advisors and members of the faculty, but having an open-door policy on the part of first-year lecturers and tutors offers a solution.

The authors recommend that when large numbers of first-year students are being dealt with, the use of student representatives selected by the mass of the students provides a valuable link between lecturers, students and tutors. First-year students select five or six representatives to form a first-year committee, thereby also developing and enhancing their leadership skills. During regular meetings involving lecturers and tutors, problems are identified, social events are planned and community projects established. This contributes to a number of important outcomes such as the development of leadership skills, and it promotes the well-being of students in the community.

3.3 The early identification of at-risk students

The early identification of students at risk should be a priority with first-generation students and/or students who are ill-prepared for tertiary education. Continuous assessment provides the opportunity for early identification, and identified students are offered additional support before their first formal assessment. Applying continuous assessment and a variety of assessments as part of the evaluation practices for a law course ensures that the students are equipped to deal with the various challenges and difficulties they are likely to experience. It is very important for a law student not to perceive knowledge as merely a static product of informatio production and consumption, but as a process and an instrument of inquiry to solve problems.17

Learning communities and the early identification of students at risk as part of developmental interventions offer invaluable solutions to alleviate the difficulties encountered by first-generation students and students who are ill prepared for higher education.

 

4 Diverse teaching methods and innovative design

At its core, education is about learning. Every educator, legal or otherwise, must at the same time be both a teacher and a student in the learning enterprise.18

Students are diverse in their learning styles. The factors that can influence a student's learning style include age, culture, levels of education and the ability to internalise information.19 However, as lecturers are also diverse in their teaching style, students should be encouraged to adjust to a variety of learning styles.20 An assumption that the learning needs of all students are similar may lead to higher failure rates in the first year. 21

First-year law modules22 could include the following innovations relating to the design and delivery of the curriculum and learning materials:

(a) theory (i.e. weekly lectures and written academic assignments - learning about);

(b) practical exposure (learning to be) (i.e. Court visits and guest lectures by members of the legal profession - students are taken to the Magistrates' Court, the High Court and the Constitutional Court.). Learning occurs in a variety of modalities and in or at many locations. Students learn about the court structure and interact with members of the profession, thereby seeing and experiencing the legal world they will one day enter.23 This learning to be activity is complemented during the year by guest lecturers, judges and state advocates, addressing the students in class. All students attend a career exposition during the year, where different law firms and public sector employees take part in a career exhibition, advising and counselling students about career opportunities.

(c) skills training (learning to be). This includes library orientation, computer training, participation in moot court activities and letter writing.

 

5 From learning about to learning to be

Generation Y actually prefers learning to be to learning about24 and they are often motivated by solving real-life problems.25 The learning strategy of the University of Johannesburg sees teaching and learning as shifting from a primary concern with the transmission of knowledge (learning about) to a primary concern with the practices of a knowledge domain (learning to be). As Amory, Gravett and Van der Westhuizen26 remark, significant learning is learning that will enable students to act purposefully in future situations, whereas learning about entails the learning of subject theory, such as concepts and facts.

Learning to be promotes the application of theory to analysing real-life problem situations. To encourage learning to be from the first year, we provide students with real-life problem situations for both mooting and during formal assessments as well as various role-play exercises to support this principle. In supporting a meaningful, integrated approach to teaching, the development of these skills should be expanded on during each consecutive year of study, until final-year students are then exposed to practical experiences in the law clinic. Students often ask why they have to study this or how it will assist them in their careers one day. Through learning to be activities such as mooting, role-play27 and court visits, students are able to connect these activities to the real-life tasks of a legal professional. Students soon discover that there are vast differences between learning about the law and learning to be a lawyer.

When faced with the set of facts provided for mooting, students have to face different realities. First they have to deal with a client (tutors can act as clients during role-play in class), and thereafter with their group partners. Finally, they have to face the presiding officer during the moot court proceedings. In this way they are introduced to developing interpersonal skills. Students are thus given the opportunity to see a connection between their own goals and the broader concerns of the discipline of law.

Although it is often difficult to promote learning to be in large classrooms, technology and an integrated tutor and mentor programme provide for innovative learning. As the facilitator during learning to be activities, the lecturer fulfills an important role. It is imperative to create a passion for the law among students and an awareness that they could one day change the world, be it on a large or a small scale.

5.1 Learning to be and teaching therapeutic jurisprudence

Learning to be creates many opportunities to learn various jurisprudential skills, such as letter writing, and engaging in the proceedings of the moot court and the law clinic. It focuses primarily on the processes of law as well as the outcomes for the legal actors (the students) as well as those who are the subjects of the legal processes, namely the clients.28 By teaching our students through the lens of therapeutic jurisprudence, we enhance the outcomes for all interested parties.

5.1.1 Letter writing: An important tool in teaching therapeutic jurisprudence

Although the generation Y student is an excellent communicator in terms of instant text messaging and e-mails, letter writing - one of the most important tools of a legal practitioner - proves more challenging.29 Because students display poor writing and reading skills, the teaching and learning of this important communication skill often proves challenging to both law lecturers and students. As Phelps states: 30

[L]anguage remains irrevocably central to the law and rather than lament our lot, it is surely wiser to roll up our sleeves and get about the task of teaching legal writing more effectively.

Teaching letter-writing skills to law students presents the lecturer with an opportunity to integrate valuable therapeutic jurisprudence principles in the teaching. A therapeutic jurisprudence approach concentrates on the law's impact on the emotional life and psychological well-being of all of the participants,31 whereas the focus of the drafting of letters and other legal documents must primarily be on the emotional well-being of the client. It is important to introduce the purpose32 and fundamentals of therapeutic jurisprudence as early as in the first academic year, as this cultivates an awareness of the importance of the client-lawyer relationship and contributes towards a latent culture promoting the psychological and physical well-being of the people involved.33

During their engageme