Embedding Critical Reflection in Legal Education - Law in ...
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Received: 28/5/2021 Date of acceptance: 9/8/2021 Date of publication: 2/9/2021
DOI: https://doi.org/10.26826/law-in-context.v37i3.154
Embedding Critical Reflection in Legal Education
Ozlem Susler , Lecturer at La Trobe University Law School, Melbourne, Australia
Alperhan Babacan, Barrister and Solicitor of the Supreme Court of Victoria and High Court, Melbourne, Australia
ABSTRACT
The literature of higher education widely notes the importance of reflection and reflective practice as a critical as-
pect of professional practice. This enables learners to act and think professionally by combining theory and practice.
As such, many teaching and learning strategies and activities to enhance reflection have been incorporated into pro-
fessional degrees. Notwithstanding the support for reflective practice, critical reflection remains a contested concept
with a lack of consensus as to its definition and best practice. The frameworks chosen by higher institutions may be
influenced by course context, ideology and expectations around the course/unit learning outcomes. This paper com-
mences with a discussion of reflection and critical reflection. By examining different notions of reflection, the paper
will discuss why the concept of critical reflection is important for practitioners in the 21st Century. It is advanced
that critical reflection can encourage learners to better understand professional practice by linking discipline
knowledge and theories to professional practice and wider insights. Whilst reflective practice is a desirable capabil-
ity for law graduates, legal education in Australia largely fails to incorporate and assess critical reflective skills, as it
is directed at producing a technically skilled and ideologically compliant legal workforce. The authors advance that
adherence to a solely doctrinal approach to legal education is no longer justified in the 21st Century, which is char-
acterised by profound change and uncertainty that impacts on the legal profession and society at large. Law schools
have a positive role to play in the education of their students through instilling doctrinal knowledge, professional
practice skills and critical thinking skills, which foster an understanding and analysis from multiple perspectives, to
ensure that law graduates are able to holistically understand the reasons for changes within their profession and
effectively adapt to change through informed choices. The final part of the paper outlines how critical reflection can
be implemented in legal education.
Keywords – critical reflection, reflective practice, legal education
Disclosure statement. No potential conflict of interest was reported by the authors.
License – This work is under Attribution-NonCommercial-ShareAlike 4.0 International (CC BY-NC-SA 4.0)
https://creativecommons.org/licenses/by-nc-sa/4.0/
Suggested citation: Susler, O., Babacan, A. (2021). “Embedding Critical Reflection in Legal Education”, Law in Context 37(3).
DOI: https://doi.org/10.26826/law-in-context.v37i3.154
Summary
1. Introduction
2. Models of Reflection and Reflective practice
3. Reflective Practice in Legal Education
4. Nurturing critical reflection in legal education
5. Conclusion
6. ReferencesISSN: 1839-4183
1. INTRODUCTION
Reflective practice is generally understood as a learning Whilst critical reflection is a desirable capability for
process embedded in experience through which new in- law students, critical and reflective practice and skills
sights are gained, of self and/or practice (Greene 2007). are not widely incorporated in legal education, with the
Through an examination of assumptions about every- exception of Clinical Legal Education (CLE), which
day practice, reflection enables an evaluation of re- forms a very small part of legal education. The reasons
sponses to these practices so that learners become more for this lie in the fact that law schools adopt a ‘technical-
self-aware (Finlay 2008). Many professional degrees rational’ style of education that focuses on analytical
have embraced reflection as an invaluable pedagogic skills, with an emphasis on the development of technical
strategy to assist students to learn from practice. The lit- and legal skills to practice law (McNamara and Field
erature on critical reflection has grown significantly in 2007). There is accordingly very limited literature and
recent years, particularly in the field of social work, practices associated with reflective activity in legal edu-
nursing and human service education, and practice.1 cation.
The benefits of reflective practice for personal and Despite the burgeoning of reflective practice in
professional growth are well documented in the litera- many disciplines, what is understood by reflection and
ture (Greene 2017). These include the application of reflective practice differs amongst various disciplines
theoretical and discipline-based knowledge to practice, (Fook, White & Gardner, 2006), with the term reflection,
which is essential to creating competent and skilled pro- critical reflection and reflexivity being commonly used
fessionals (Jootun and McGarry 2014), and the improve- interchangeably (Black and Plowright 2010, Finlay
ment of personal and professional awareness (Ganzer 2008, Brookfield 2009, Lucas 2012). There is a lack of
and Zauderer 2013). Reflective practice can assist to clarity as to what critical reflection is and how it should
construct a new and deeper understanding of the expe- be practiced (Fook and Gardner 2007). The exact model
adopted may be influenced by ideological approaches,
rience (Toros and Medar 2015). Additionally, reflective
discipline based normative approaches and/or unit
practice can assist a practitioner to explore everyday
learning outcomes (Lucas 2012). This confusion and
practice and personal belief systems, which can influ-
challenge is only aided by the existence of several mod-
ence their perceptions of others and their interpreta-
els of reflection, with little guidance for educators to un-
tions of motivation and attitudes (Pompeo and Heller
derstand and develop the reflective ability of their
Levitt 2014).
learners (Mann, Gordon and McLeod 2009). The next
Reflection can provide students with a sense of self, section of the paper will discuss the concept of reflec-
enable the monitoring of their performance and enable tion and reflective practice.
students to consider and understand the gap between
themselves in relation to their social context (Archer 2. MODELS OF REFLECTION AND REFLECTIVE
2010). Awareness of self is described as deeper PRACTICE
knowledge about oneself; greater understanding of a Reflection refers to the ability, practices and processes
practitioner’s self-awareness which in turn brings the within day-to-day activities of professionals to stand
practitioner to engage professionally more effectively, back and look critically at one’s profession and profes-
with clients and professionals (Greene 2017). sional practice (Finlay 2008). A number of definitions of
1
D’Cruz, Gillingham and Melendez (2007); Ferguson (2018); Gursansky, Quinn and Le Sueur (2010); Pawar and Anscombe (2015);
Phillips and Bond (2004); Cunliffe (2004); Cope (2003); Aranda and Street (2004); Diekelmann, Ironside and Harlow (2003); Liima-
tainen et al. (2001); Tomlinson et al. (2002); Jootun et al. (2014); Pompeo and Heller Levitt (2014); Autry and Walker (2011).
Law in Context, Vol 37, Issue 3; 2021 2ISSN: 1839-4183
reflection and reflective practice have been advanced. precision (Eraut 2004) and is atheoretical and apolitical
For example, Dewey (1933, p. 9) defined reflection as (Finlay 2004).
“active, persistent and careful consideration of any be- Boud, Keogh and Walker (1985) advance a three-
lief or supposed form of knowledge in the light of the staged reflection-based model, which requires learners
grounds that support it and the further conclusion to to first reflect on an experience and describe it in a non-
which it tends”. Moon (1999, p. 23) describes reflection judgemental manner. The second stage involves attend-
as “a form of mental processing with a purpose and/or ing to their feelings triggered by the experience and the
anticipated outcome that is applied to relatively com- third stage, involves evaluating experience. This model
plex or unstructured ideas for which there is not an ob- heavily confines reflection to a retrospective role (re-
vious solution”. Boud, Keogh and Walker (1985, p. 19) flection on action) and learners are not encouraged to
define reflection as “a generic term for those intellectual engage in dialogue in a wider social arena (Finlay 2008).
and affective activities in which individuals engage to
explore their experiences in order to lead to a new un- Kolb’s Learning Cycle is a well-known theory, which
derstanding and appreciation”. Most of these definitions outlines a continuous learning cycle process in how
advance that reflection commences by an awareness of learners construct and organise knowledge, through ex-
the need to review professional practice, through resort perience and thought. Kolb (1984) posits that we learn
to empirical and theoretical data (Mann, Gordon and from our experiences of life and that the process of
McLeod 2009). The key features of these definitions are learning follows a pattern or cycle consisting of four
that they are forged in experience, enable a questioning stages: (1) concrete experiences (setting the scene for
of self and guide action and practice (Smith 2011). It is learning); (2) reflective observation (thinking and re-
evident that each of the three definitions of reflection viewing the experience; (3) abstract conceptualisation
place emphasis on deliberate purposeful analysis of (generating a hypothesis about the meaning of the ex-
both knowledge and experience, so as to achieve a periences); and (4) active experimentation (testing or
higher and deeper understanding (Mann, Gordon and putting into practice the ideas flowing from the experi-
McLeod 2009). ence). This model enables a scaffolding approach to
planning, learning and teaching (Lucas 2012).
Different models of reflection have also been ad-
Gibbs (1998) developed a six-stage theory of reflec-
vanced. Reflective practice in the professional context is
tion in learning involving a description of what hap-
most identified with Schon’s writings. Schon (1983) in-
pened; feelings and how these changed; an evaluation of
troduced the concept of a ‘reflective practitioner’ which
what was good or not good; analysis involving compar-
utilises reflection to revisit experience, to learn from
ing theory and practice and making sense of the experi-
and to solve grey areas and complex problems associ-
ence; a conclusion; and future action plan. Learners may
ated with professional practice. Schon’s important con-
find this model to be vague and requiring further guid-
tribution was the development of reflection in action ance (Lucas 2012). Johns' model of structured reflection
(thinking whilst undertaking the event or task) and on provides a detailed checklist of questions to facilitate re-
action (thinking after the event), which is predomi- flection (Johns 1994). The model is criticised as being
nantly concerned with improving professional practice prescriptive and reducing opportunities for learners to
to enable practitioners to continue to learn, grow, and utilise their own intuitions (Greene 2017). Finlay
develop in and through their practice (Finlay 2008). (2008) advances that a prescriptive application of any
Schon’s reflective practice is an individualistic and per- one model can reduce the opportunities for practition-
sonal exercise where practitioners solely focus on their ers to use their own values, priorities and intuitions and
own thoughts and evaluations (Finlay 2008). Whilst therefore, advocates that practitioners choose a model
Schon’s model has been highly popular, it lacks selectively and apply it flexibly.
3 Law in Context, Vol 37, Issue 3; 2021ISSN: 1839-4183
Common to all models is a return to experience to al. (2007) describe reflexivity in the context of critical
examine it, so that future situations can benefit from the reflection as the manner in which knowledge is gener-
insights gained (Mann, Gordon and McLeod 2009). ated and how power relations impact on knowledge
There is some broad consensus generally in so far as re- generation.
flective practice is understood as a learning process Fook (2007, p. 6) asserts that:
from which insights are gained of self and professional
practice, through critically examining practices and as- “[U]sing the idea of reflexivity then, critical
sumptions associated with everyday professional prac- reflection is a way of researching personal prac-
tice (Finlay 2008). Notwithstanding this broad consen- tice or experience in order to develop our un-
sus, there is disagreement, especially as to whether derstandings of ourselves as knowers or makers
of knowledge. This in turn helps us make spe-
practitioners should focus solely on themselves and
cific connections between ourselves as individ-
their professional practice as opposed to larger social uals and our broader social, cultural and struc-
contexts (Finlay 2008). tural environment, by understanding how our
Critical reflection is broader than that advanced by ideas, beliefs and assumptions might be at least
partially determined by our social contexts.”
some models, which solely focus on professional prac-
tice (Fook 2007). Contemporary writings on critical re- Critical reflection thus goes beyond self-awareness
flection call for professionals to engage in both personal and assumptions underlying ones’ professional practice
reflection and broader social contexts. Various authors to encapsulate reflection about power, imbalances to
(Brookfield 1995; Fook, White and Gardner 2006) ad- power, social class, gender, race and sexualities (Fook
vance that critical reflection is a more comprehensive and Gardener 2007, Ferguson 2018). Reflexive practice
form of reflection and reflection on its own is superficial is interwoven with social critique, which encourages at-
and undisruptive of changes to techniques. Unlike re- tention to also be focused on wider social, political and
flection, critical reflection incorporates analysis of so- discursive contexts (Finlay, 2008). Critical reflection ne-
cial and political contexts and discourse and encourages cessitates the use of knowledge critically, as opposed to
transformative change and action (Finlay 2008). It links acceptance of a situation at face value, but to be able to
theory to practice and facilitates an understanding of look holistically beneath the surface and what impacts
socially dominant assumptions and practices to encour- and influences the situation. This approach enables
age social and individual change. Fook and Askeland learners to gain a fuller understanding of experience
(2006, p. 53) argue that “part of the power of critical re- and in turn, enables them to more effectively under-
flection in opening up new perspectives and choices stand the impact of socio-economic forces (Lucas,
about practice may only be realized if the connections 2012). Fook (1999) advances that critical reflection is
between individual thinking and identity, and dominant essential to twenty-first century learning and practice.
social beliefs are articulated and realized.” She discusses the emancipatory dimension of critical re-
Various theorists saw critical reflection in educa- flection as a critical process directed at encouraging
tion, as a means to achieving emancipation through the practitioners to challenge dominant power relations.
raising of consciousness (Freire 1972; Mezirow 1990, For Reynolds (1998), four key features distinguish crit-
1991; Brookfield 1993; Boud, Cohen and Walker1993). ical reflection from other forms of reflection: (1) it is de-
These works which were inspired by Freire (1972) have signed to question assumptions; (2) it has a social as op-
come to be known as critical pedagogy and have utilised posed to just an individual focus; (3) it pays attention to
critique in the process of critical reflection based on the analysis of power relations; and (4) its pursuit of
feminist, Marxist, post-colonial and post-structuralist emancipation (Reynolds 1998).
theories in the act of critical reflection, to enhance the Although other professional degrees such as social
focus on how people relate to social contexts. D’Cruz et work and counselling have incorporated critical reflec-
Law in Context, Vol 37, Issue 3; 2021 4ISSN: 1839-4183
tion as an essential part of their degrees in some form, widely incorporated in traditional legal education. This
legal education has largely failed to embrace reflective is because law schools adopt a ‘technical-rational’ style
practice. of education, that focuses on analytical skills with an
emphasis on the development of technical and legal
3. REFLECTIVE PRACTICE IN LEGAL EDUCATION skills to practice law (Keyes and Johnstone 2004, John-
Reflective learning is widely used in clinical legal educa- stone and Vignaendra 2003). Legal education focuses
tion (CLE) programs offered in Australia2 to encourage heavily on instilling legal and technical thinking within
students to reflect upon and review their performance, a doctrinal paradigm. Legal thinking processes are
the law and legal system and legal processes and to pro- highly conservative and doctrinal in nature, with a
vide learners with the necessary skills for legal practice heavy focus on legal problem solving through adversar-
(James 2008; Giddings 2008; Curran, 2004; Curran, ial means. From a pedagogic perspective, legal educa-
Dickson and Noone 2005; Spencer and Brooks 2019; Ev- tion is highly teacher centric and Socratic in nature
ans et al. 2017; Giddings and Lyman 2010). It should be (Keyes and Johnstone 2004, Galloway 2008). The em-
noted that the high costs associated with running and bedding of critique and alternative perspectives within
supervising CLE programs offered in Australia, mean the law degree is generally absent (Thornton 2001).
that these programs are only available to a handful of Student centred approaches to teaching and learning
students in their final year of study (Giddings 2014, are seldom utilised (Curruthers et al. 2012). The adop-
2020; Giddings at al. 2010; Giddings and Weinberg tion of a rigid approach to teaching and learning in legal
2020; Rice 1991; Evans et al. 2017). Additionally, not all education provides little scope for the enhancement of
law schools offer clinical legal education programs. A creative thinking and reflective skills, with a general ab-
range of activities and assessment practices are used to sence of alternative and critical pedagogies and reflec-
enhance reflection in CLE. These include: learning jour- tive practice.
nals/diaries, case logs, team journals, oral presentation In a series of articles, Thornton (1998, 2001, 2007,
journals, chat room journals and post experience re- 2009, 2012, 2014, 2016, 2017) documents the neo-lib-
ports (Spencer and Brooks 2019; Burton 2015; Camp- eral drivers associated with the higher education sector
bell and Ray 2003; Evans et al. 2017; Giddings and in Australia and the specific impact of neo-liberal poli-
Lyman 2010). These activities and assessment tasks cies on law schools, which has placed legal education
commonly support reflective practice through the en- within a vocational, conservative and compartmental-
couragement of recording of student thoughts, reflec- ised framework (Thornton 2009, 2016, 2017). Neo-lib-
tive writing, the sharing of ideas and feedback. Reflec- eralism not only involves privatisation and deregulation
tive activities offered in CLE, provide a significant focus of public goods, it fosters dominant values around the
on the development of legal practice and ethical skills market, competition and the maximisation of profits, a
necessary for legal practice. Generally, there is an ab- scenario replicated in higher education in Australia
sence of the social and political dimensions of profes- (Thornton 2016, 2017; Baron 2013). Government poli-
sional practice, the socio-political contexts of the lives cies promoting neo-liberal processes have rendered
and problems of the clients and social and political im- market forces to prevail and higher education in Aus-
pacts on the law, justice and legal system. tralia has been presented as a private good, which con-
Whilst reflective practice has been identified as a sumers pay for. Increased numbers of students attend-
desirable capability for the very few law students who ing university are seen as a supply of knowledge work-
undertake CLE programs in their final year in some Aus- ers to keep Australia competitive (Thornton 2009,
tralian law schools, reflective practice and skills are not 2014b). Disciplines such as law and business have
2
Burton (2015), Campbell and Ray (2003); Spencer and Brooks (2019); Palermo and Evans (2008), Evans et al. (2017).
5 Law in Context, Vol 37, Issue 3; 2021ISSN: 1839-4183
thrived, whilst the social sciences have declined in this at providing a technically skilled and ideologically com-
environment (Thornton 2009). pliant legal workforce.
The movement by Australian universities to a mass The Australian Law Reform Commission was critical
education system with a focus on vocational and applied of the traditional manner in which legal education was
knowledge, (Thornton 2009, 2016, 2017) resulted in taught and recommended for broader engagement with
former colleges to be converted to universities from the the law and skills enhancement (Australian Law Reform
1980s and government funding of universities was re- Commission 2000). As such, apart from limited use of
duced (Thornton 2009, 2016). The introduction of uni- reflective practice in CLE Programs, there are very few
versity fees and severe cutbacks in the provision of gov- articles and practice papers on critical reflection in legal
ernment funding to universities, resulted in universities education in Australia. Notable exceptions include
which were once not for profit institutions, being com- McNamara and Field (2007) who advocate for the intro-
pelled to enter the market (Thornton 2009, 2016). The duction of reflective practice in legal education, Burton
legal labour market was seen as imperative to providing (2016) who discusses the use of a court report as a re-
knowledge workers for the economy (Thornton 2009). flective tool, Burton and McNamara (2017) who outline
Between 1989 and 2007, twenty-four new law schools processes to assess reflective skills and Shircore et al.
were opened in Australia (Barker, 2013, Thornton (2013) who discuss critical reflection in the context of
2009). experiential learning. Bunjevac (2013) discusses the
benefits and practicalities of incorporating critical re-
Law schools have faced profound changes with re-
flection into a Bachelor of Laws degree.
spect to their teaching and assessment practices in the
reconfigured neo-liberal environment, in the post The integration of reflective practice in a Bachelor
1980s. Law subjects which enhance business and cor- of Laws degree is supported by one of the six threshold
porate legal practice have been encouraged and those learning outcomes (TLOs) developed as part of a Learn-
which encompassed broader interdisciplinary and the- ing and Teaching Academic Standards Project (Kift, Is-
oretical understandings of law with a critical compo- rael and Field, 2010). TLO number 6, termed ‘Self-Man-
nent were viewed as having little meaning within the agement’ incorporates reflective practice. TLO 6 re-
market paradigm (Thornton 2009, 1998, 2016, 2017, quires law students to “learn and work independently …
Baron 2013). Admission bodies across Australia have reflect on and assess their own capabilities and perfor-
prescribed knowledge of doctrine, as opposed to juris- mance… and make use of feedback as appropriate “ (Kift,
prudence and radical critique. This has been supported Israel and Field 2010, pp. 22-23). The Good Practice
by large law firms (Thornton 2009). Law schools began Guide for Reflective Practice (McNamara, Cockburn and
to emphasise the notion of a well-rounded lawyer with Campbell, 2013) lists a number of benefits of teaching
a narrow technocratic approach, depoliticised and sep- and learning reflective practice in a Bachelor of Laws
arated from the socio-political contexts of law program. The benefits listed are identical to those cov-
(Thornton 2009, 1998). Like the legal curriculum, the ered in the general literature in this area.
prescription of assessments has also taken an economic Notwithstanding calls for change, critical reflection
rationalist approach. Assessment in the form of re- has not been taken up in legal education offered in Aus-
search and reflective essays which enhance critique and tralia. Law is an applied profession which can use theory
the fostering of interdisciplinary approaches with a and practices from a range of other less applied aca-
questioning voice, which take longer to complete and demic disciplines such as sociology, psychology, anthro-
mark, have been replaced by final examinations which pology, and political science. The authors advance that
promote cramming and the repetition of legal doctrine legal education requires theoretical and experience-
(Thornton 2009). Baron (2019) advances that under based knowledge, which are inter-twined with wider
neo-liberalism, legal education and training is directed social contexts so that the law and the profession of
Law in Context, Vol 37, Issue 3; 2021 6ISSN: 1839-4183
lawyering is understood and practiced in a holistic man- able to utilise and rely on technological tools whilst also
ner. Legal education students therefore, require the being aware of their shortcomings. (Savelka, Grabmair
ability to critically reflect in a demanding and onerous and Ashley 2021, pp. 135-137). If graduate lawyers are
profession. expected to function in today’s technological environ-
We advance that the effective preparation of law ment, then technology must also have a greater ubiquity
students for legal practice is essential, but a sole focus in course curriculum and design in legal education (Cas-
on doctrinal knowledge and legal skills cannot be justi- anovas 2012, p.17).
fied in the 21st Century, which is characterised by im- Law schools have a positive role to play in not only
mense disruption and change in the workplace and so- supporting student learning in the traditional sense, but
ciety at large. Globalisation has severely impacted the to also prepare graduates who are able to understand
law and legal practice. Briefly, examples of disruption to and navigate change. There is sufficient room in the le-
the practice of law include outsourcing of legal work, gal education curriculum to not only to instil essential
growth in large and international firms, the use of tech- legal skills and knowledge, but to also foster critical and
nology in legal practice (Ryan 2018, James 2017) and the independent thinking.
use of online forms and service provision (Hakim 2018).
The adoption of critical reflection can enable law
Collectively, these changes profoundly impact the struc-
students to see the multiple functions of the law, socio-
ture of the traditional law firm and the practice of law
political impacts upon the law, problems and issues
and can negate the need for human labour. The instilling
with legal workplace processes, practices and cultures,
of legal skills and doctrinal knowledge does not mean
the power of the law and the power it provides to legal
that law graduates will be effectively prepared to adapt
professionals.
and to cope with disruptions associated with the prac-
tice of law. Given the profound changes, law graduates 4. NURTURING CRITICAL REFLECTION IN LEGAL
need to be equipped with the ability to understand the EDUCATION
nature and the reasons for these changes, so that they
are able to develop capabilities to navigate unfamiliar Critical reflective practice involves more than thought-
change in the face of uncertainty (Scott and Vare 2008). ful thinking and practice; rather it is a process where
As such, it is critical for 21st Century law graduates to not practice is turned into meaningful learning (Jootun and
only know the law and be equipped with legal skills, but McGarry 2014). In order to unearth assumptions about
to be able to critically evaluate the reasons for the power, critical reflection needs to be structured care-
changes occurring in their profession from multiple fully as an essential part of the learning process. Atten-
lenses, so that they are able to more effectively adapt to tion needs to be paid to ensure that the environment
change through informed choices. provided for reflection, nurtures and is supportive in
terms of time, resources, opportunities and methods for
Although the use of technological tools has gained
reflection, developing skills of critical analysis. Ground
greater currency in legal practice in the last decade, par-
rules relating to respect, confidentiality, non-judgmen-
ticularly since the onset of the Covid-19 pandemic, the
talism with a focus on responsibility and openness to
incorporation of technology into the legal curriculum is
other/contradictory views, need to be established from
generally lagging behind. Traditional legal education
the outset (Fook 2007).
does not teach students the skills and knowledge re-
quired to understand, utilise and evaluate new Artificial A wide range of specific strategies can be employed
Intelligence technologies such as Machine Learning and within legal education to facilitate and foster critical re-
Natural Language Processing, yet such technologies re- flection. Strategies employed may include group-based
quire understanding in contemporary legal practice. learning, simulations, reflective journals, debate, role-
Upon entering the legal profession, graduates need to be plays, and problem-based and/or case-based analysis to
7 Law in Context, Vol 37, Issue 3; 2021ISSN: 1839-4183
develop students’ reflective capacities (Anzalone 2001). activities, case studies and assignments relating to the
These tools can enable learners to consider wider con- contemporary changes in the structure and regulation
textual issues and promote critical thinking (Greene of the legal profession in light of globalisation and its im-
2007) pact on the workforce generally and the law, can enable
Individual work does not nurture critical reflection. students to not only understand the law in this area but
Group work is necessary to clarify and challenge as- can foster a sense of understanding of the socio-eco-
sumptions, the existence of which we may be unaware nomic and political forces, which have contributed to
(Finlay 2008). Hence reflection requires dialogue in changes in the contemporary practice of law. Similar ac-
small groups, a reflective interactive conversation to tivities and assessments can be incorporated into most
evaluate perspectives and assumptions to achieve a sit- law units.
uational understanding. Dialogue shapes the context of Incorporation of collaborative projects which en-
the situation (Forneris and Peden-McAlpine 2006). Dia- courage sociological, economic and political perspec-
logue in small groups and in the form of critical ques- tives of the law and engagement in dialogue with peers
tioning (e.g., questioning of sources of knowledge, past and instructors not only enables the gaining of wider in-
experience, assumptions and biases and plans for future sights, but also fosters students to develop argument
actions) is a key practice in the critical reflection pro- and listening skills. The interpretations gained from
cess. In essence dialogue becomes a critical conversa- such class discussions can enable students to be ex-
tion, which assists students to integrate their prior posed to the topic from multiple lenses and encourage
learning and practical experiences. It provides a vehicle them to justify their choice of argument, thereby foster-
for learners to discuss not only what they know, to why ing a richer understanding and a questioning of their as-
they know something and thereby encourages the ave- sumptions.
nue for multiple thinking perspectives from different Narrative reflective journaling can provide a mech-
lenses (Forneris and Peden McAlpine 2006). anism to engage in reflective thinking and document
Asking students to position themselves in relation narratives from practice, which can be tied to wider so-
to a class, gender, sexuality, religion, race and to gener- cio-political impacts on the law. Narrative journaling
ate standpoints is a method that can be used to interro- needs to be guided by specific instructions (Brookfield
gate privilege. Engaging in dialogue about these matters 1990), a critical incident technique and reflection
can raise consciousness and awareness in this area through a series of questions and answers on an event
(Pease 2006). A series of questions can be very useful to (Forneris and Peden-McAlpine 2006). Questions that
facilitate and promote critical reflection, especially are posed, act as a guide to recall facts about an event
when the instructor adopts an ‘elicitive’ approach to and to assist in reflection. Reflective prompts on the
teaching (Anzalone 2001). In elicitive teaching, the in- event, which are linked to wider social contexts, can be
structor is a catalyst for the student’s learning and the used to elicit ideas about background factors, which
instructor’s knowledge is a resource for learning contribute to the experience to capture the learner’s re-
(Lederach 1995). ality and foster reflection (Forneris and Peden-McAl-
For example, in a property law class, students can pine 2006).
undertake class activities which look at property law The use of critical theory to refer to a range of theo-
from sociological and economic perspectives and be re- retical perspectives rather than a single theory can be
quired to take a position as to whether the law perpetu- beneficial. Alvesson and Skoldberg (2009, p. 145) state
ates inequalities under the capitalist system. This theme that “critical theory is characterised by an interpretative
can also be incorporated as a key aspect of the property approach combined with a pronounced interest in criti-
law assignment with appropriate marks allocated. In cally disputing actual social realities, its guiding princi-
the unit Professional Conduct, the incorporation of class ple is an emancipatory interest in knowledge and it
Law in Context, Vol 37, Issue 3; 2021 8ISSN: 1839-4183
maintains a dialectical view of society, claiming that so- on fostering critical reflection in legal education, to en-
cial phenomena must always be viewed within their his- sure that students are effectively and holistically trained
torical contexts”. Use of critical theory and other theo- as critical and constructive professionals.
ries applicable to the law, allow for different interpreta-
tions and encourage students to choose and justify their 6. REFERENCES
choice of views and interpretations. Critical reflection of 1. Alvesson, M., and Sköldberg, K. 2009. Reflexive
this nature enables the development of a capacity for Methodology - New Vistas for Qualitative Research
critiquing knowledge presented to learners (Fook and (2nd ed.). London, UK: Sage.
Gardener 2007). Critical reflection thus needs to inter- 2. Anzalone, F.M, 2001. “It All Begins with You: Im-
rogate larger social relations, social structures and so- proving Law School Learning through Profes-
cial processes or society that contribute to legal and jus- sional Self-awareness and Critical Reflection.”
tice related issues. Additionally, it needs to recognise Hamline Law Review, 24 (2): 325-371.
that knowledge is itself socially produced and may ex- 3. Aranda, S., and Street, A. 2001. “From Individual
clude the voices of those with the least power within the to Group: Use of Narratives in a Participatory Re-
criminal justice and legal system widely (Fook and search Process” Journal of Advanced Nursing, 33:
Gardner 2007). Critical theory can be systematically 791-797.
embedded into most law units. 4. Archer, M. S. 2010. “Routine, Reflexivity, and Re-
alism.” Sociological Theory, 28(3): 272-303,
5. CONCLUSION https://doi.org/10.1111%2Fj.1467-
It has been advanced that the key aims of legal edu- 9558.2010.01375.x
cation focus on enhancing lawyering skills to produce 5. Australian Law Reform Commission 2000. Man-
“work ready” graduates, with the exception of CLE aging Justice: A Review of the Federal Civil Justice
which is offered to a few students, whilst very little system, Report No. 89.
space is provided for reflective activities in legal educa- https://www.alrc.gov.au/publication/managing-
justice-a-review-of-the-federal-civil-justice-sys-
tion in Australia. This paper strongly advocates that
tem-alrc-report Accessed 20/7/2021/
teaching and learning in law needs to incorporate criti-
6. Autry L.L. and Walker M.E. 2011. "Artistic Repre-
cal reflection, to enable learners to see the law and legal
sentation: Promoting Student Creativity and Self-
practice from multiple perspectives, so that they can
Reflection" Journal of Creativity in Mental Health,
gain a wider appreciation of the factors which impact
6(1): 42-55.
upon the law and professional practice in a period of un- https://doi.org/10.1080/15401383.2011.56007
certainty and change. There is a notable absence of prac- 6
tices and literature in legal education offered in Aus- 7. Barker, M. 2013. “An Avalanche of Law Schools,
tralia. A number of practice-based suggestions have 1989-2013.” Journal of the Australasian Law
been made to enhance critical reflection in legal educa- Teachers Association, 6 (1-2): 1-13.
tion, which can be effective to encourage law students 8. Baron, P. 2013. “A Dangerous Cult: Response to
to challenge discipline-set modes of inquiry and prac- the Effect of the Market on Legal Education” Legal
tices and to encourage them to assess their professional Education Review, 23 (2): 273-289.
practice more holistically. The teaching and learning 9. Black, P. E., and Plowright, D. 2010. “A Multi Di-
strategies suggested in this paper which enhance criti- mensional Model of Reflective Learning for Pro-
cal reflection, are also applicable to students studying in fessional Development.” Reflective Practice, 11
other professional degrees. More research is required (2): 245- 258.
9 Law in Context, Vol 37, Issue 3; 2021ISSN: 1839-4183
10. Boud, D., Cohen, R., and Walker, D. 1993. Using Ex- Legal Education.” Journal of Australasian Law
perience for Learning. Buckingham, UK: Society Teachers Association 14(5): 159-177.
for Research into Higher Education and Open Uni- 22. Cope, J. 2003. “Entrepreneurial Learning and Crit-
versity Press. ical Reflection: Discontinuous Events as Triggers
11. Boud, D., Keogh, R., and Walker, D. 1985. “Promot- for Higher Level Learning.” Management Learn-
ing Reflection in Learning: A Model.” In D. Boud, ing, 34 (4): 429-450.
R. Keogh and D. Walker (eds.), Reflection: Turning 23. Cunliffe A. L. 2004 "On Becoming a Critically Re-
Experience into Learning London, UK: Kogan Page flexive Practitioner". Journal of Management Edu-
pp. 18-40. cation, 28 (4) 407-425.
12. Brookfield, S. 1995. Becoming a Critically Reflec- 24. Curran, L. 2004. “Innovation in an Australian Clin-
tive Teacher. San Francisco, USA: Jossey-Bass. ical Legal Education Program: Students Making a
13. Brookfield, S. 2009. “The Concept of Critical Re- Difference in Generating Positive Change.” Inter-
flection: Promises and Contradictions.” European national Journal of Clinical Legal Education, 162.
Journal of Social Work, 12 (3): 293-304. DOI: 10.19164/ijcle.v8i0.90
14. Bunjevac, T. 2013. “Critical Reflection and the 25. Curran, L., Dickson, J. and Noone, M. A. 2005.
Practice of Teaching Law.” Journal of the Australa- “Pushing the Boundaries or Preserving the Status
sian Law Teachers Association, 9: 1-10. Quo? Designing Clinical Programs to Teach Law
15. Burton, K. 2015. “A Criterion-referenced Assess- Students a Deep Understanding of Ethical Prac-
ment Rubric on Reflective Practice Designed with tice.” International Journal of Clinical Legal Edu-
Clinical Legal Education in Mind.” Journal of Aus- cation, 104-122. DOI: 10.19164/ijcle.v8i0.90
tralasian Law Teachers Association, 8 (1-2): 3-12. 26. D’Cruz, H., Gillingham, P., and Melendez, S. 2007.
16. Burton, K. 2016. “Using a Reflective Court Report “Reflexivity, its Meanings and Relevance for Social
to Integrate and Assess Reflective Practice in Work: A Critical Review of the Literature.” British
Law.” Journal of Learning Design, 9 (2): 56-67. Journal of Social Work, 3: 73–90.
17. Burton, K., and McNamara, J. 2009. “Assessing Re- 27. Dewey, J. 1933. How We Think. A Restatement of
flection Skills in Law Using Criterion-referenced The Relation of Reflective Thinking to the Educa-
Assessment.” Legal Education Review, 19: 171- tive Process. Boston, US: D.C. Heath.
188. 28. Diekelmann, N. L., Ironside, P. M., and Harlow, M.
18. Campbell, S., and Ray, A. 2003. “Specialist Clinical 2003. “Teaching Practitioners of Care: NewPeda-
Legal Education: An Australian Model.” Journal of gogies for the Health Professions”. In Diekelmann,
Clinical Legal Education, June: 67-78. DOI: N. and Ironside, P. (eds.), Educating the Caregiv-
10.19164/ijcle.v3i0.119 ers: Interpretive Pedagogies for the Health Profes-
19. Carruthers, P., Skead, N. and Galloway, K. 2012. sions, Vol. 2, (pp. 3-21). Wisconsin, US: University
"Teaching Property Law in Australia in the of Wisconsin Press.
Twenty-First Century: What We Do Now, What 29. Eraut, M. 2004. “Editorial: The Practice of Reflec-
We Should Do in the Future?" Australian Property tion.” Learning in Health and Social Care, 3(2): 47-
Law Journal 21(1), 57-75. 52.
20. Carson, L. and Fisher K. 2006. "Raising the Bar on https://doi.org/10.1111/j.1473-
Criticality: Students Critical Reflection in an In- 6861.2004.00066.x
ternship Program" Journal of Management Educa- 30. Evans, A., Cody, A., Copeland, A., Giddings, J., Joy,
tion, 30 (5): 700-723. P., Noone, M.A. and Rice, S. 2017. Australian Clini-
21. Casanovas, P. 2012 “Legal Crowdsourcing and Re- cal Legal Education: Designing and Operating a
lational Law: What the Semantic Web Can Do For Best Practice Clinical Program in an Australian
Law in Context, Vol 37, Issue 3; 2021 10ISSN: 1839-4183
Law School. Canberra, Australia: ANU Press. 41. Giddings, J. 2008. “Contemplating the Future of
31. Ferguson, H. 2018. “How Social Workers Reflect Clinical Legal Education.” Griffith Law Review 17
in Action and When and Why They Don’t: The Pos- (1): 1-16.
sibilities and Limits to Reflective Practice in Social 42. Giddings, J. 2003. “Clinical Legal Education in Aus-
Work.” Social Work Education, 37 (4): 415-427. tralia: A Historical Perspective.” International
32. Finlay, L. 2008. “Reflecting on ‘Reflective prac- Journal of Clinical Legal Education, ,3: 7-28. DOI:
tice’.” A discussion paper prepared for the Practice 10.19164/ijcle.v3i0.115
Based Professional Learning Centre, Paper 52, The 43. Giddings, J., Burridge, R., Gavigan, S. and Klein, C.
Open University. http://ncsce.net/wp-con- 2010. “The First Wave of Modern Clinical Legal
tent/uploads/2016/10/Finlay-2008-Reflecting- Education: The United States, Britain, Canada and
on-reflective-practice-PBPL-paper-52.pdf Australia”. In Bloch, F. (Eds.), The Global Clinical
Accessed 20/7/2021. Movement: Educating Lawyers for Social Justice
33. Fook, J. 1999. “Critical Reflectivity in Education Oxford, UK: Oxford University Press. pp. 3-22.
and Practice.” In Pease, B. and Fook, J. (ds), Trans- 44. Giddings, J. and Lyman, J. 2010. “Bridging Differ-
forming Social Work Practice: Postmodern Critical ent Interests: The Contributions of Clinics to Legal
Perspectives (pp. 195-208). London, UK: Allen and Education.” In Bloch, F. (ed.), The Global Clinical
Unwin. Movement: Educating Lawyers for Social Justice.
34. Fook, J. 2007.”Reflective Practice and Critical Re- Oxford, UK: Oxford University Press.
flection.” In Lishman, J. (ed.), Handbook for Prac- 45. Giddings, J. and Weinberg, J. 2020. “Experiential
tice Learning in Social Work and Social Care, (2nd Legal Education: Stepping Back to See the Fu-
ed) London, UK: Jessica Kingsley pp. 363-375. ture.”. In Denvir, C. (ed.), Modernising legal educa-
35. Fook, J., and Gardner, F. 2007. Practising Critical tion Cambridge University Press. pp. 38-56.
Reflection: A Resource Handbook. Maidenhead, 46. Gibbs, G. 1998. Learning by Doing: A Guide to
UK: Open University Press. Teaching and Learning Methods. Oxford, UK: Fur-
36. Fook, J., White, S. and Gardner, F. 2006. “Critical ther Education Unit, Oxford Polytechnic.
Reflection: A Review of Contemporary Literature 47. Greene, A. 2017. “The Role of Self-awareness and
and Understandings.” In White, S., Fook, J. and Reflection in Social Care Practice.” Journal of So-
Gardner, F. (eds.), Critical Reflection in Health and cial Care, 1(3): 1-13.
Social Care Maidenhead, UK: Open University 48. Gursansky, D., Quinn, D., and Le Sueur, E. 2010.
Press pp. 3-20. “Authenticity in Reflection: Building Reflective
37. Forneris, S. G. and Peden-McAlpine, C. E. 2006. Skills for Social Work.” Social Work Education, 29
“Contextual Learning: A Reflective Learning Inter- (7): 778-791.
vention for Nursing Education.” International 49. Hakim, L. 2018. “The 2017 Australia: State of the
Journal of Nursing Education Scholarship, 3 (1), 1– Legal Market” Thomson Reuters, https://in-
18. sight.thomsonreuters.com.au/legal/posts/top-9-
38. Freire, P. 1972. Pedagogy of the Oppressed. Lon- legal-sector-trends-2017. Accessed 4/7/2020.
don, UK: Penguin. 50. James, C. 2008. “Lawyer Dissatisfaction, Emo-
39. Galloway, K. 2008. “Statutory Modification of Con- tional Intelligence and Clinical Legal Education.”
tract Law in Queensland: A New Equilibrium or Legal Education Review, 18 (1&2): 1-13.
Entrenching the Old Power Order.” James Cook 51. James, N. 2017. “Digital Disruption of Le-
University Law Review, 15: 67-96. gal Practice and Education.” In the Network for
40. Gardner, F. 2009. “Affirming Values: Using Critical Australian Law Administrators Conference :
Reflection to Explore Meaning and Professional Graduate Attributes and Digital Disruption - Bond
Practice.” Reflective Practice, 10 (2): 179-190. University, Gold Coast, Australia, (7- 8 September
11 Law in Context, Vol 37, Issue 3; 2021ISSN: 1839-4183
2017), https://research.bond.edu.au/en/publi- 62. McNamara, J., and Field, R. 2007. “Designing for
cations/digital-disruption-of-legal-practice-and- Reflective Practice in Legal Education.” Journal of
education Accessed 23/5/2020. Learning Design, 2 (1): 66-76.
52. Johns, C. 1994. "Guided Reflection". In Palmer, A., 63. McNamara, J., Cockburn, T., and Campbell, C.
Burns, S. and Bulman, C. (eds.) Reflective Practice 2013. “Good Practice Guide (Bachelor of Laws) Re-
in Nursing, Oxford, UK. Blackwell Scientific. flective Practice.” Australian Learning and Teach-
53. Johnstone, R., and Vignaendra, S. 2004. “Learning ing Council.
Outcomes and Curriculum Development in Law.” A 64. Mezirow, J. 1990. Fostering Critical Reflection in
Report Commissioned by the Australian Universi- Adulthood: A Guide to Transformative and Emanci-
ties Teaching Committee, Higher Education Group, patory Learning. San Francisco, USA: Jossey-Bass.
Department of Education, Science and Training. 65. Mezirow, J. 1991. Transformative Dimensions of
54. Jootun, D., and McGarry, W. 2014. “Reflection in Adult Learning. San Francisco, US: Jossey-Bass.
Nurse Education.” Journal of Nursing & Care, 3(2): 66. Moon, J. 1999. A Handbook of Reflective and Expe-
1-3. riential Learning. London, UK: Routledge.
55. Keyes, M., and Johnstone, R. 2004. “Changing Le- 67. Norberg, U. 2014. “Fostering Self-reflection in
gal Education: Rhetoric, Reality, and Prospects for Translation Students: The Value of Guided Com-
the Future.” Sydney Law Review, 26 (4): 537-564.
mentaries.” Translation and Interpreting Studies,
56. Kift, S., Israel, M., and Field, R. 2010. “Learning and
9 (1): 150–164.
Teaching Academic Standards Project: Bachelor of
68. Palermo, J., and Evans, A. 2008. “Almost There:
Laws Learning & Teaching Academic Standards
Empirical Insights into Clinical Method and Ethics
Statement December 2010.” Australian Learning &
Courses in Climbing the Hill Towards Lawyers’
Teaching Council. http://www.altc.edu.au/sys-
Professionalism.” Griffith Law Review, 17 (1): 252-
tem/files/altc_standards_LAW_110211.pdf
284.
57. Kolb, D. 1984. Experiential Learning. Eaglewood
69. Pawar, M., and Anscombe, A. W. B. 2015. Reflective
Cliffs, NJ, USA: Prentice-Hall.
Social Work Practice - Thinking, Doing and Being.
58. Lederach, J. P. 1995. Preparing for Peace: Conflict
Cambridge, UK: Cambridge University Press.
Transformation Across Cultures. New York, USA:
Syracuse University Press. 70. Pease, B. 2006. “Encouraging Critical Reflections
59. Liimatainen, L., Poskiparta, M., Karhila, P., and on Privilege in Social Work and the Human Ser-
Sjogren, A. 2001. “The Development ofReflective vices.” Practice Reflexions, 1(1):15-26.
Learning in the Context of Health Counseling and 71. Phillips, V., and Bond, C. 2004. “Undergraduates’
Health Promotion During Nurse Education.” Jour- Experiences of Critical Thinking.” Higher Educa-
nal of Advanced Nursing, 34(5): 648-658. tion Research & Development, 23 (3): 277-294.
60. Lucas, P. 2012. “Critical Reflection. What do We 72. Pompeo, A. M., and Heller Levitt, D. 2014. “A Path
Really Mean?” In Proceedings of the 2012 Austral- of Counselor Self-awareness.” Counseling and Val-
ian Collaborative Education Network National ues, 59: 80–94. https://doi.org/10.1002/j.2161-
Conference Geelong, pp.163-167 007X.2014.00043.x
http://acen.edu.au/2012conference/wp-con- 73. Reynolds, M. and Vince, R. (eds.) 2004. Organising
tent/uploads/2012/11/92_Critical-reflection.pdf Reflection. Farnham, UK: Ashgate.
Accessed 20/07/2021 74. Rice, S. 1991. “Prospects for Clinical Legal Educa-
61. Mann, K., Gordon, J and MacLeod, K. 2009. “A Re- tion in Australia.” Journal of Professional Legal Ed-
flection and Reflective Practice in Health Profes- ucation, 9 (2): 155-167.
sions Education: A Systematic Review.” Advances 75. Ryan, R. 2018. “Large-scale Legal Disruption Hav-
in Health Science Education, 14: 595–621. ing ‘Narrow’ Impact.” Lawyers Weekly
Law in Context, Vol 37, Issue 3; 2021 12ISSN: 1839-4183
https://www.lawyersweekly.com.au/bigla 83. Thornton, M. 2001. “Among the Ruins: Law in the
w/23985-large-scale-legal-disruption- Neo-liberal Academy”. Windsor Yearbook of Ac-
having-narrow-impact cess to Justice, 20: 3-23.
Accessed 3 July 2020. 84. Thornton, M. 2007. “The Law School, the Market
76. Savelka, J., Grabmair, M., and Ashley, K. 2021. “A and theNew Knowledge Economy.” Legal Educa-
Law School Course in Legal Analytics and AI” Law tion Review, 17 (1 & 2): 1-26.
in Context, 37(1):135–137. 85. Thornton, M. 2012. “The New Knowledge Econ-
https://doi.org/10.26826/law-in-con- omy and the Transformation of the Law Disci-
text.v37i1.125 Accessed 7/8/2021 pline.” International Journal of the Legal Profes-
77. Schon, D. 1983. The Reflective Practitioner: How sion, 19 (2-3): 265-281.
Professionals Think in Action. New York, USA: 86. Thornton, M. 2009. “The Law School, the Market
Basic Books. and the New Knowledge Economy.” The German
78. Scott, W. and Vare, P. 2008. Education for Sustain- Law Journal, 10 (7): 641-667.
able Development–Two Sides and an Edge. 87. Thornton, M. 2014. “Deregulation, Debt and the
DEAThinkpiece. Discipline of Law.” Alternative Law Journal, 39:
http://www.tidec.org/GLtoolkit/Secondary- 213-16.
handbook/2c.61dea_thinkpiece_vare_scott.pdf 88. Thornton, M. 2014. “Legal Education in the Corpo-
Accessed 4/2/2020. rate University.” Annual Review of Law and Social
79. Shircore, M., Galloway, K., Corbett-Jarvis, N., and Sciences, 10: 19-35.
Ryan, D. 2013. “From the First Year to the Final 89. Thornton, M. 2016. “Law Student Well Being: A
Year Experience: Embedding Reflection for Work Neoliberal Conundrum.” Australian Universities
Integrated Learning in a Holistic Curriculum Review, 58(2): 42-50.
Framework. A Practice Report.” The International 90. Thornton, M. 2017. “How the Higher Education
Journal of the First Year in Higher Education, 4(1): ‘Industry’ Shapes the Discipline of Law: The Case
125-133. of Australia.” Griffith Journal of Law and Human
80. Smith, E. 2011. “Teaching Critical Reflection.” Dignity, 5 (2): 102-117.
Teaching in Higher Education, 16 (2): 211 – 223. 91. Tomlinson, P. S., Thomlinson, E., Peden-McAlpine,
81. Spencer, R., and Brooks, S. L. 2019. “Reflecting on C., and Kirschbaum, M. 2002. “Clinical Innovation
Reflection: A Dialogue Across the Hemispheres on for Promoting Family Care in Paediatric Intensive
Teaching and Assessing Reflective Practice in Care: Demonstration, Role Modelling and Reflec-
Clinical Legal Education.” The Law Teacher, 53(4): tive Practice.” Journal of Advanced Nursing, 38(2):
458-474. 1-10.
https://doi.org/10.1080/030694002019.16670 92. White, S., Fook, J., and Gardner, F. 2006. Critical
85 Reflection in Health and Social Care. Maidenhead,
82. Thornton, M. 1998. “Technocentrisim in the Law UK: Open University Press.
School: Why the Gender and Colour of Law Re-
main the Same.” Osgoode Hall Law Journal 36(2):
369-395.
13 Law in Context, Vol 37, Issue 3; 2021You can also read
