Thinking in legal educ



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with critical perspectives, self-reflection and broad skill development.68

Critical thinking is mentioned explicitly as a skill requirement in AQF level 7 (bachelor) and AQF level 9 (masters) degrees. Law degrees at the undergraduate and postgraduate level must reach the requisite AQF standards. It is instructive to compare the standard required for a JD (AQF Level 9) with that required for an LLB (AQF level 7). At Level 7, graduates of a bachelor degree will have:

cognitive skills to review critically, analyse, consolidate and synthesise knowledge

cognitive and creative skills to exercise critical thinking and judgement in identifying and solving problems with intellectual independence.

At Level 9, graduates will have:

cognitive skills to demonstrate mastery of theoretical knowledge and to reflect critically on theory and professional practice or scholarship

cognitive, technical and creative skills to investigate, analyse and synthesise complex information, problems, concepts and theories and to apply established theories to different bodies of knowledge or practice

cognitive, technical and creative skills to generate and evaluate complex ideas and concepts at an abstract level.

65 Avrom Sherr and David Sugarman, ‘Theory in Legal Education’ (2000) 7

International Journal of the Legal Profession 165, 167.

66 See, for example, Mary Keyes and Richard Johnstone, Changing Legal Education: Rhetoric, Reality and Prospects for the Future’ (2004) Sydney Law Review 38; Rob Guthrie and Joseph Fernandez ‘Law Schools in the 21st Century’ (2004) 29

Alternative Law Journal 276

67 David Weisbrot ‘From the Deans Desk’ (1994) 3(1) Sydney Law School Reports 1.

This statement was recommended to be adopted by Law Schools as an underlying philosophy by the ALRC, above n 60, in 2000 ([2.89]).

68 Law School Reform, above n 2.
The TLOs that have been adopted to meet the AQF requirements, set out in Part II, demonstrate that the thinking skills described at both Level 7 and Level 9 are high-order thinking skills. They are not skills that students can simply ‘pick up’ through learning and analysing legal doctrine and applying it to legal questions. This is the challenge that critiques of modern legal education in Australia, such as Margaret Thorntons, present to legal educators, and that TEQSA and the AQF descriptors require us to meet.

With this background in mind, we set out to articulate the purpose of legal education. It is our contention that many of these goals and approaches to legal education are realised through a focus on critical thinking (as defined in Part I) in pedagogical practice.

We believe a legal education should equip students with a foundation of legal knowledge that distinguishes them from students educated in other academic disciplines. This means law degrees will require a detailed knowledge of the legal institutions of the state, the origins of the common law and Australian legal systems, the political processes that generate laws, the systems of dispute resolution, and a knowledge of key areas of legal doctrine and their application. This initial goal focuses then on teaching students the ‘content grammar’ of law as a new discourse.69 In law, John Zerilli has referred to the necessity of teaching ‘faculty’:
Practising lawyers must comprehend legal principles and processes. The curriculum rightly would include a survey of the substantive corpus of law, for example, the law of obligations, public law and crime as well as the adjectival law, such as the law of evidence and procedure. It would also cover legal method, rules of precedent and formal legal reasoning. A lawyer is not a lawyer until he or she has these arrows in his or her quiver. The lawyer may possess nothing besides and still be a lawyer. But without these, even possessing other admirable qualities, he or she is no lawyer.70
While its focus is on substantive legal doctrine, we do not accept that this necessarily requires the adoption of a passive, teaching-as- transmission style. Within the teaching of the legal rules, we envisage an important role for immanent critique of doctrine, including through logical critique and critical engagement with orthodox legal method.

However, we also believe that the prescriptive content of a law degree, currently articulated in the Priestley list of subjects, need not constrain the scholarly mission of a legal education. As we explained in Part II, by setting the broad parameters of the required knowledge base in a law degree, the Priestley requirements somewhat relieve


69 P S Peters, referred to in Brookfield, above n 10, 28.

70 John Zerilli, ‘Reflections on Legal Education and Philosophy: The Critical Role of

Theory in Practice’ (2007) 17
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