“Affect and legal education: emotion in learning and teaching the law” edited by Paul Maharg and Caroline Maughan, Ashgate Publishing Limited

A link to the book is here; it is available on Amazon UK here.

It is a very major mistake to divorce cognition and emotion. Cognition and emotion are necessarily linked – that is how the human brain works, it is thought. It is impossible for the brain to formulate complicated higher order differential equations from scratch, and then solve them quickly, in response to the right questions. That’s why the million billion neurones of the human brain uses shortcuts to make decisions, often on incomplete information. Even more significantly, human-beings need to be behave with another with a socially competent manner, and to understand each other reasonably accurately. As a practical issue, it is dangerous to believe that you can predict future performance solely on the basis of complex higher cognition. In addition to emotion, the individual needs to be highly motivated. This sophisticated book on affect and legal eduction is the first to provide a comprehensive account of the importance of emotion and legal education, and makes important steps into understanding that the outcome of a successful education in terms of the aspirations of both the teacher and the student.

This book is well written. Even though the book is multi-authored, the style is consistent and coherent, and I found this book of enormous value across a diverse range of subjects. It is also immaculately evidenced, making it a robust and forceful argument for an agenda for a change in legal education. Maharg and Maughan demonstrate considerable leadership in considering the right topics. I feel also that the book is inherently innovative, in that it is likely that many individuals responding to this book, including student, teacher and lawyer, will do so in remarkably different ways, but much of the future strength of this book is the content generated by the users’ responses to the complex issues raised.

The book has a very clear structure. Part 1 considers affect, legal education and neuroscience, Part 2 considers affect and legal educators, and Part 3 considers affect and learning. The book collectively forces the reader to consider how the efficacy of education depends upon an individual’s reaction and interaction with it, and obliges the reader to consider what exactly the outcomes of education are (and whether they should matter).  There are so many microstories told within this book which I adore. One for example is the account of FR Leavis, who was not appointed to a full lectureship at Cambridge until the age of 52, and was not even elevated to Reader until 64; in fact, he only obtained his Chair after he retired from Cambridge, going to the University of York. There are too many strands for me to cover them in a single book review, but I should like to mention two chapters in particular.

Chapter 9 is entitled, “What students care about, and why we should care” by Graham Ferris and Rebecca Huxley-Binns. My reaction to this chapter was one of enormous excitement, in fact. Ferris and Huxley-Binns advance a hypothesis that a curriculum design which ignores the motivation of students (perhaps in joining a caring profession), and notion of self-worth, will run into trouble. This simple idea is extremely elegant, and in fact in my view fully evidenced from neuropsychology. One’s perception of contentment will suffer if there is a mismatch between expectation and outcome, and so therefore it is essential to consider what motivates the student. The authors make reference to the seminal work of Frankfurt, and for me this hypothesis has at its roots Maslow’s hierarchy of needs. As a lawyer becomes more senior, compared to his or her stage as a fee-earner in a corporate firm, it may be that a lawyer becomes less concerned about paying off his mortgage, although that presumably will remain important. It may become more about whether he or she feels a difference is being made. The authors avoid the issue about what money is as a reinforcing factor, and in fact it was the view of my doctoral supervisor at Cambridge, the Head of Department there, that money is at best considered a “higher order motivating factor”.

Furthermore, I do not know whether Ferris and Huxley-Binns stumbled on distress as a relevant topic simply by seeing what goes wrong in legal education. However, the debate which they have introduced is directly relevant and important to modern cognitive neuroscience. The rejection of a mind-body separation is inherent to Damasio’s ‘somatic marker hypothesis’, and some cognitive neuroscientists now consider anxiety states as being where the human brain is not able to process body states adequately. Damasio’s work is directly relevant here as the ventromedial prefrontal cortex is considered to be crucial in producing an emotional state, using information about bodily states gained elsewhere in the cerebral cortex, and outputs through the autonomic nervous system in the spinal cord.

Therefore, in many ways, Ferris and Huxley-Binns’ argument is ahead of its time, and merits further consideration. The mind itself can produce a perception of abnormal physiological states, as demonstrated in the hugely complicated somatisation disorders. It matters to people that they care about things, and the authors argue that this must be taken account of legal education. This goes to the heart of all communication – actually asking what the other party wants. This error in legal training can be seen at all levels of legal education, and it is extremely useful that Ferris and Huxley-Binns requests that this should be confronted, not least because it maybe an affront to autonomy otherwise, a central tenet of ethics. I particularly liked the very clever argument, based on the historical work by Lepper and Greene (1975) and others, that rewards could in fact be demotivating (‘self-determination theory’), and the authors made their observations extremely relevant to the high motivational value of optional courses such as mooting. Therefore, in summary, the chapter is not only a sophisticated synthesis of neuroscience, philosophy, ethics and education from an academic perspective, it is also highly useful in the practitioner setting for the design of better course. The notion of ‘primum non nocere’ (at first do no harm) in assessment procedures is not lost on me. This, I feel, is a cautionary tale for those designing exit exams in the BPTC, or entrance exams such as the Bar Course Appraisal Test, proposed recently by the Bar Standards Board.

Chapter 13 is entitled, “Space, absence and silence: the intimate dimensions of legal learning” by Paul Maharg. I found this chapter challenging, extremely intelligent and delightful. In this chapter, Paul describes how spaces are formed, the meanings of space and what uses space can be put to, potentially, amongst other subplots. I feel the beauty of this chapter is in fact in the neuroscience which is not discussed. Firstly, it is now known that object and space perception happens in two distinct streams in the human brain, and it is thought that part of the reason why humans have so many neurones is that their brains participate in what is commonly known as ‘the binding problem‘. In other words, the brain, somewhere and somehow, produces a combined perception of the outside world, and this is somehow linked to the emotional and motivational state of the individual. Hence the discussion of how you listen to John Cage’s 4′ 33″ sensibly arises.

Secondly, but more importantly, it is the acknowledgement that group decision-making is intrinsically different from the sum of the parts of individual decision-making that is potentially extremely fruitful; another gestalt phenomenon. This helps one to understand the critical importance of working in teams, often cited as important in the corporate legal culture, as to how decisions are arrived at in terms of the logic as well as the social interaction between the participants. The second case study on communication, space and emotion is therefore extremely rich. Its relevance to students in law schools, for example in doing the GDL or LPC, is immediately obvious; it is also easy to see how corporate teams may function or malfunction in the context of high-end transactions; or it can be used to understand why the social brains of jury members collectively return one verdict rather than another.

To conclude, I strongly recommend this book, if you are a law student, teacher, lawyer or other member of society. The complex concepts are sufficiently well explained that any reasonable person should be able to understand them, and the book is important for three huge reasons. It is carefully researched, and is an articulate picture of various interdiscipinary strands connecting affect, emotion and legal education. Secondly, if the right questions are asked, it will take the quality of legal education (and its assessment) much further, as well as the work of those in academic or practitioner circles. Thirdly, it is way ahead of its time.

References  

Lepper, M, Greene, D. (1975) Turning play into work: effects of adult surveillance and extrinsic rewards on children’s intrinsic motivation. Journal of Personality and Social Research 31: 479-86.