Setting (your own) standards:ways of thinking and writing about the law

Paul MahargThe Australian National University

Slides @ paulmaharg.com/slides

preview1. Occluded genres in academic study & beyond2. Anxieties of influence3. The rhetoric of legal research and writing: what works4. On the day…

• Slides available at: http://paulmaharg.com/slides

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Narrative ... is a form whose fundamental characteristic is to produce closure; argument is the form whose fundamental characteristic is to produce difference and hence openness.

Kress, G. 1989. ‘Texture and meaning.’ In Narrative and Argument, ed. R. Andrews, Milton Keynes: Open University Press, 12.

Q: how does this apply to law and legal study?

John Dewey (1859-1952)‘A democracy is more than a form of government; it is primarily a mode of associated living, of conjointcommunicated activity.’

Democracy and Education(1916)

1. Occluded genres: invisibility and voice

‘Academic occluded genres are, in part, those which support the research publication process but are not themselves part of the research record.’

Swales (1996, 45)

academic occluded genres

In reverse order of seniority:

1.Request letters (for data, copies of papers, advice, etc)2.Application letters (for jobs, scholarships, etc)3.Submission letters (accompanying articles, books, etc)4.Research proposals (for outside funding, etc)5.Recommendation letters (for students, job seekers, etc)6.Article reviews (as part of the review process)7.Book or grant proposal reviews (as above)8.Evaluation letters for tenure or promotion (for academic committees)9.External evaluations (for academic institutions)

Swales (1996), 47

examples of occluded genres

Journal editor letters

Response to reviewer

letters

Email

Published articles

Conference presentatio

n

Grant proposals

Conference abstracts

Response to

reviewers

Reviewer evaluations

Submission letters

Journal article

Manuscripts

Res

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h ar

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publ

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ion

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Journal editor letters

Response to reviewer

letters

Email

Published articles

Conference presentatio

n

Grant proposals

Conference abstracts

Response to

reviewers

Reviewer evaluations

Submission letters

Journal article

Manuscripts

Res

earc

h ar

ticle

publ

icat

ion

genr

e cl

uste

r

Feak (2009,18)

• Yes! And we never learned them at Edinburgh• Seek out opportunities to learn them through PhD &

early career and beyond• We all need to (re-)learn them, eg Maharg & PFHEA• Useful text: Swales & Feakin (2004).

are occluded genres part of PhD apprenticeship?

• Even more so!• The genres still exist but in

different & mediated forms –new contexts, processes, etc.

• New genres are emerging

do we need to learn them in our digital age?

• The academy can exclude, suborne, oppress private lives

• We are not just legal academics, and we can create our best work whenwe explore what we’ve done in our lives, who we are, our intellectual influencesand affective bonds.

our lives contain occluded genres

‘Now is your time to begin Practices and lay the Foundation of habits that may be of use to you in every Condition and in every Profession at least that is founded on a literary or a Liberal Education. Sapere and Fari quae sentiat are the great Objects of Literary Education and of Study. … mere knowledge however important is far from being the only or most important Attainment of Study.The Habits of Justice, Candour, Benevolence, and a Courageous Spirit are the first Objects of Philosophy the Constituents of happiness and of personal honour, and the first Qualifications for human Society and for Active life.’

Adam Ferguson, Lectures, 1775-6, fols 540-1, MSS, Edinburgh University Library,quoted Maharg (2007, 109-11)

the academy occludes genres, too

Non tu corpus eras sine pectore; di tibi formam,di tibi diuitias dederunt artemque fruendi.Quid uoueat dulci nutricula maius alumno,qui sapere et fari possit quae sentiat, et cuigratia, fama, ualetudo contingat abunde,et mundus uictus non deficiente crumina?Inter spem curamque, timores inter et irasomnem crede diem tibi diluxisse supremum;grata superueniet quae non sperabitur hora.

Horace, Epistles, I, iv

You are not merely a body without any feelings.You have been given beauty, wealth and the means to appreciate things.What more would a nurse wish for her sweet little oneThan wisdom, the power to express what he feels,Much kindness, health and fame,An elegant way of life, and enough money?Amid the hope and worry, fear and anger,take every day that dawns as your last –the unlooked-for hour will be a welcome surprise.

• Poets are anxious about powerful figures in the past, eg early Yeats is too strongly influenced by Shelley.

• They need to misread the texts of their strong precursors, revisioning the relationship, and at least in six ways or ‘tropes’, including tessera and clinamen.

• Misreading or misprision, like intertextuality, opens up latent, marginalised or hidden textual meaning, and it is possible to use it to explain and engage with the ideological complexities of powerful texts and ways of reading within hegemonic traditions. (Bloom 1980)

• All interpretation is misreading (Bloom 1974)

anxiety of influence (Harold Bloom)

• Santos takes Bloom seriously by misreading him: poems distort reality just as law does, and for similar reasons (Santos 1987, 281)

• Santos’ use of clinamen is typically Bloomian in his emphasis on the creativity of the move: ‘the clinamen does not refuse the past; on the contrary, it assumes and redeems the past by the way it swerves from it’ (Santos 2007, 86).

Bloom & de Sousa Santos, part 1

• Constitutional arrangements, which are particularly porous, are always open to misprision: examples are the endlessly creative debates around the First Amendment in the USA – in Scotland, post-Referendum, the discourse of ‘reserved matters’ is another.

• As legal texts, constitutional documents tend to be more open to arguments of public policy and rights-based arguments.

• As such, they become shaping texts that, quite apart from the legislative authority they bear, are heavily symbolic of the self-identity of a community.

misprision and constitutions

• But just as in Bloom’s critique authors cover influences, or perform creative swerves around dominant predecessors in a culture of belatedness, so too does a constitution.

• Every constitution has a relationship to predecessors; and in addition to granting rights, it creates a normative mode of discourse that closes down future debate, prevents the development of new discourse, establishes its own autonomy.

Maharg (2012)

Bloom and constitutionality

(Some of) our anxious questions:•How original is my work?•How will my evidence & argument be interpreted?•Am I fitting into a canon? Challenging that canon? Creating an ‘ecology of knowledges’? How will I do that?•Is conformism what I want here?•How do I move out of apprenticeship, find my voice, join the full community?

the constitution of doctoral studies

2. The rhetoric of legal research, reading & writing: what works

What is everywhere passes unnoticed. Nothing is more commonplace than the experience of reading, and nothing is less well known. Reading

is taken for granted to such an extent that at first glance it seems nothing need be said about it.(Todorov, 1978, p. 39).

strategies for readingWhat I said to my adult learners:•Read forward – no recursive reading•Listen to your expectations for word clusters•Be aware of context’s effect on meaning•Cope with loss of power & agency while you’re reading•Form good habits and discipline

Panmure Lute MSS (c.1632), 5, no.3.

Music for Lute Consort, c.1500

strategies for reading musicWhat my lute tutor said to me:•Read forward – no recursive reading•Listen to your harmonic expectations•Be aware of context•Cope with playing and expression while sight-reading music•Form good habits and discipline

strategies for reading law(what I told myself)Read forward – no recursive reading

Listen to your expectationsBe aware of context’s effect on meaningCope with loss of power & agency while readingForm good habits and discipline

- Surface code of words- Textbase of text – internal meaning of the text- Situation model – interpreting the text’s situation -Text genre -Intertexts -Epistemic belief

-- Simplicity vs complexity of knowledge-- Certainty vs uncertainty of knowledge-- Source(s) of knowledge in and around the texts-- Justification for knowing what we know

what works: making notes from readingWylie Lochhead v Mitchell

1870 8 M 552

A. Contracted to build for B. a hearse for a sum, on condition that B. should contribute certain portions of materials and workmanship. B. did so – and materials from were fixed to the hearse so that they could not be detached without injury to it. A. became bankrupt before finishing the hearse which was in his posssession.

Question in law: in a dispute between B. and the trustee in A.’s sequestration, who owned the hearse?

Held: that the parties were joint proprietors of the subject in proportion to the value of their respective contributions.

This illustrates the principle of equity. Where material, skill or labour of 2 or more are involved to produce a corporeal indivisible object, they each have a claim regarding their individual contribution.

Use mobile digital flashcards, too…

AbstractWith an increasing amount of time spent reading electronic documents, a screen-based reading behavior is emerging. The screen-based reading behavior is characterized by more time spent on browsing and scanning, keyword spotting, one-time reading, non-linear reading, and reading more selectively, while less time is spent on in-depth reading, and concentrated reading. Decreasing sustained attention is also noted. Annotating and highlighting while reading is a common activity in the printed environment. However, this “traditional” pattern has not yet migrated to the digital environment when people read electronic documents. (Liu 2005)

•Digital streaming is also changing the way we listen to music…

what works:digital reading

what works: legal writingWRITING

Structured argument Types of writing

Boundaries Writing processes - Time - Planning - Word limit - Strategies - Subject - Monitoring - Purpose

1. Discursive essay2. Problem-solving essay

• Throw a constraint away• Partition the problem• Set priorities and ‘satisfice’• Draw on a routine or learned procedure• Plan...

strategies for reducing constraints

‘The UK’s sovereignty is reduced, not enhanced, by Brexit’. Discuss

•Do I agree with the question?– Disagree with it?– Agree with bits of it?

•Are there any terms in it I want to define?•What structure does the question give to my notes?•What headings can I break this structuredown to?

questions to ask about discursive writing

introductions to essaysYou can:• Refer to the demands of the question

– to show you’re being relevant• Discuss the terms of the question

– that you maybe want to define for yourself• Question the question

– if you don’t agree with any assumptions it makes• Summarise what you say in the essay• Outline what you are going to analyse in the essay

• Define area of law– … and identify if you need to define terms in it relevant to the problem

• Establish the rights of the parties– … both parties!

• Identify the option(s)• Decide on the solution(s).

In an exam, you need to have memorised information to do this – try using graphics & diagrams...

problem-solving writing

Invalidity of Contracts, Sheet 1Scots law of Contract, c.1991. Prepared by me for the LLB exam.

3. On the day…

First two pages of my exam script…

Second two pages of my exam script…

Questions raised by this shaky moment…1.Why did this happen to me?2.What did it say about my fear of failure? 3.What else did it say about my emotional relation to Law?4.How was I going to stop it happening in the future?5.What did it say about the Law programme, that there was no space in it to discuss these issues?

Bloom, H. (1974). The Anxiety of Influence. Oxford University Press, Oxford.Bloom, H. (1980). A Map of Misreading. Oxford University Press, Oxford.Feak, C. (2009). Negotiating publication: Author responses to peer review of medical research articles in thoracic surgery. Revista Canaria de

Estudios Ingleses, 59: 17–34. Available at: http://publica.webs.ull.es/upload/REV%20RECEI/59%20-%202009/02%20Feak.pdf. Liu, Z. (2005). Reading behaviour in the digital environment. Changes in reading behaviour over the past 10 years. Journal of

Documentation. 61, 6, 700-12.Maharg, P. (2007). Transforming Legal Education: Learning and Teaching the Law in the Early Twenty-first Century. Ashgate Publishing,

Farnham. Maharg, P. (2012). The identity of Scots law: redeeming the past. In Scottish Life and Society. A Compendium of Scottish Ethnology. Law, ed.

Mark Mulhern. Birlinn Press & The European Ethnological Research Centre, Edinburgh.Santos, B. de Sousa (1987). Law: a map of misreading. Toward a postmodern conception of law, Journal of Law and Society, 14, 3, 279-302.Santos, B. de Sousa (2007). Beyond abyssal thinking: from global lines to ecologies of knowledges, Review (Fernand Braudel Centre), 30

(2007) 45-90.Swales, J. (1996). Occluded genres in the academy: the case of submission letters. In Academic Writing: Intercultural and Textual Issues, Eija

Ventola, Anna Mauranen, eds, John Benjamins Publishing, New York, 46-58.Swales, J., Feak C. (2004). Academic Writing for Graduate Students. Essential Tasks and Skills. Second edition, University of Michigan Press. Todorov, T. (1978) Genres in Discourse, trans. C. Porter. Cambridge, Cambridge University Press.

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Email: paul.maharg@anu.edu.auWeb: paulmaharg.comSlides: paulmaharg.com/slides