Thinking in legal educ



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12 Brookfield, above n 10, 14.
In the legal context, critical thinking has both immanent and extrinsic qualities. That is, it can be pursued both within the teaching of legal doctrine and from a position of external evaluation. An immanent analysis recognises that the accuracy and validity of the assumptions in law is inherent in critical analysis of legal reasoning itself. A common inquiry here is whether we accept that there is an underlying corpus juris of legal principle waiting to be uncovered through the legal techniques, or whether morality, politics and personal choice plays a larger part in legal reasoning.13 An immanent approach to evaluating assumptions in law requires understanding the orthodoxy of legal reasoning and analysis, and also being able to assess the validity of the assumptions on which it is based and understanding different methods of legal interpretation — including legal determinacy. It may also involve instruction in legal critique, the practical workings of the law and advocacy for law reform.14

A second strategy for unpacking assumptions is achieved through introducing a range of extrinsic perspectives on the law and legal processes. There is the fundamental critique of law in jurisprudence and political theory: What is the nature of law and the source of its authority? What is laws function? Who is the law for? The function of law dictates the function of lawyers, and feeds into a critical legal ethics perspective. There is thinking about law as a social, cultural, economic, historical, and political phenomenon. These perspectives on the law require an introduction to core critiques of law as a social and political phenomenon, such as feminist critiques, legal realism and critical legal studies, critical race theory, and postmodern theories of law. There is thinking about law in society as a mechanism for justice through democracy and human rights, or as a means of oppression, through protecting vested interests and entrenching class privilege. All these perspectives assist in developing the ability to analyse and critique substantive rules and legal processes, and engaging in processes of law reform and policy formation.

Many legal educators have adopted the ideals of critical thinking and the methods described in this section. Further, critical thinking is formally recognised in the description of skill competences in most law degrees15 and is employed explicitly as a skill requirement in the

13 This debate is represented most visibly in the exchange between Ronald Dworkin and advocates of Critical Legal Studies. Compare for example, Ronald Dworkin, Laws Empire (Harvard University Press, 1986) 225−75 and Duncan Kennedy, A Critique of Adjudication [fin de siecle] (Harvard University Press, 1997)

157−79

14 Note that advocacy for law reform is not itself critical thinking, but can be an example of critical thinking if it employs the capacities described in this section.

15 See, for example, the Adelaide Law School Graduate Attributes
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