Teaching public law: Topicality—a blessing or a curse?

On Tuesday 25th June, I will be speaking at a conference at the University of Manchester, organised by the Society of Legal Scholars and Oxford University Press, on the subject of “Teaching Public Law in Academia”. I will be speaking to the title: “Topicality – a blessing or a curse?” The following is a draft of my talk.  

Public law is not short of characteristics that make it, if not unique, then distinctive. Especially in its more abstract, institutional and conceptual guises, the subject can be off-putting to students—not least because it fails to adhere to the black-letter paradigm with which students begin to identify early in their academic careers. A further aspect of public law’s distinctiveness is its topicality. This is not to suggest that other subjects do not evolve—sometimes rapidly. But the phenomenon of topicality is one that affects—or, depending on one’s viewpoint, afflicts—public law particularly.

In these remarks, I will briefly raise (and attempt only the beginnings of answers to) three questions: What exactly is topicality? Is it a blessing or a curse? And how might we ensure that it is harnessed for good in our teaching, rather than allowing it to become a burden?

The nature of topicality

For these purposes, I take topicality to mean that developments occur in the subject-area which are external to, and go beyond, the dynamism accounted for by academic discourse. In this sense, for all that legal theory (for example) is an academically vibrant discipline, public law is topical in a way that legal theory is not. Of course, most—if not quite all—areas of legal study are topical in some way. Legislation is enacted. Cases are decided. Government policy shifts. Stuff happens. However, I think that public law is unusually topical in three ways.

The first point concerns the volume of developments with which public lawyers have to cope. The amount of case law is considerable, and far in excess of the volume experienced 20 or 30 years ago. Meanwhile, public law accounts for a very substantial proportion of cases decided at the highest judicial level. In addition, public lawyers have to keep abreast of a particularly wide range of developments, spanning not only domestic and European case law, literature and legislation, but also an enormous range of official publications.

Second, the speed at which public law is liable to change—in often fundamental respects—has been particularly great. In the relatively recent past, the subject area has been transformed—if not beyond recognition, then at least to a very significant degree.  In this sense, public law tends to experience “shocks” in a way that not every subject does.

And, third, public law and the issues with which it grapples enjoy a peculiarly (and unsurprising: the clue is in the title) public profile that lends it an obvious topicality. Public law and the matters upon which it impinges are the subject of public discourse and media attention in a way and to an extent that few other branches of law can match.

A curse or a blessing?

Cambridge Law applicants are fond of telling their interviewers that Law is interesting because it is ubiquitous. If that is so, then public law must be (and, we would all no doubt agree, is) especially interesting. But its topicality has the potential to be a double-edged sword. It has the capacity to be either a blessing or a curse. And which of those it turns out to be is largely—perhaps entirely—in the hands of those who curate the subject, as lecturers, tutors, and textbook-writers.

The three senses of topicality which I have sketched create some obvious risks. The sheer number of developments in public law coupled with ready access to information about them (thanks to the internet, social media, and so on) may become overwhelming. A firm grasp of classical principles may be sacrificed in favour of a fixation upon the latest case, select committee report, blog post, or tweet. And so the trees may begin to obscure the wood.

On the other hand, from a teaching perspective, topicality is potentially one of public law’s greatest strengths. It establishes its credentials as an evolving, dynamic, relevant area of law, which is as much the subject of public debate as it is the object of academic study. In this sense, public law’s topicality is something that can be harnessed in order to draw students in and maintain their interest. (I have certainly noticed my own students’ interest levels rise demonstrably when discussion turns to the interface between public law and current events—whether in relation to the future of the Human Rights Act, the deportation of Abu Qatada, or Scotland’s—and the UK’s—constitutional future.)

What should we do?

How, then, as teachers of public law, can we ensure that topicality fulfills this promise? In thinking about this, it may be helpful to distinguish between two senses in which material (in this context) can be topical.

The first possibility is that the material in question might itself be constitutive (or at least evidence) of a change in the law, or of the broader context in which the law falls to be understood. The cult of the latest case, and the connected phenomenon of the reading list that only ever gets longer from year to year, are not unique to public law. But, for reasons touched on already, our field is perhaps unusually vulnerable in these respects. The more that there is going on, and the easier it is to point students toward sources of information about new developments, the more important it is that those who teach public law act as effective curators of the information that is “out there”. We should certainly not seek to disguise from our students the richness and diversity of what is constantly happening in world of public law. But, at the same time, we have a responsibility to ensure that their attention is focused on developments that effect change that really matters. Less can sometimes be more—particularly in (what is typically) a first-year subject with which many students only gradually come to terms.

The second sense in which material may be topical is that it might demonstrate or facilitate engagement with key concepts, principles or problems. This form of illustrative topicality holds real potential as a pedagogical tool. Of course, we are all familiar with using examples of this nature in our teaching—it would be surprising to pass over such a rich and useful resource. It occurs to me, however, that our reliance on such material might go further (or at least further than it does in my own teaching at present). It might, for example, move centre-stage: courses might, for instance, be designed around a handful of well-chosen examples capable of operating as vehicles for the exploration of fundamental ideas and issues.

Of course, this intersects with a whole range of other questions—about contextualism, breadth versus depth, technical mastery versus conceptual understanding, and so on. It also raises yet another of public law’s distinctive features: that it has multiple (and perhaps no obvious) points of entry, and is unusually difficult to break down into bite-sized chunks. Case studies, themes and topical examples therefore supply ways of navigating public law that harness (rather than seeking to marginalize) its essential nature—as a web of overlapping ideas, relational institutions and interlocking (and sometimes contradictory) principles.

Exactly where this thinking leads I am not yet sure. But it may well point away from the traditional, linear course, which risks imposing an artificial structure that may inhibit students’ appreciation of the interconnectedness of the various dimensions of the subject. In that sense, questions about how we should integrate topicality into our teaching is a facet of a much broader set of questions about how public law can best be taught today.

Update  Ben Fitzpatrick has posted a very interesting and thoughtful response here on his blog.

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