Language for Law: A Beginners Mind

1. Introduction

This is a short piece which hopes to outline and discuss some issues around developing a content-based presessional course in language for law. That is, a 6 week course aiming to teach both language and academic skills to international postgraduate students through law based texts and tasks. This article is written with an emphasis on my own experience, a ‘novice’ EAP practitioner and hopes to outline some of the challenges of the primarily ‘solitary endeavor’ of designing a course (Ding and Bruce 2017:111). It attempts to highlight how a lack of expertise and prevailing practices within an institution can mean that difficult decisions regarding the nature of course content are not always as principled as they could be. In fact, it is a twofold plea for the creation of good language-centric materials and the focus on professional development which might enable this.

As a practitioner met with the challenge of developing a new course in a new discipline, an obvious starting point is needs analysis. As Bruce (2017) points out, ‘EAP is a discipline that is famously needs-driven.’ Unsurprisingly, of particular interest here are the students’ target needs regarding language. Assessing these needs involves operationalizing two areas of expertise. Firstly, an ability to interrogate law’s disciplinary practices and, secondly, the capacity to unravel and unpack the numerous features constituting the genres which are written and read in law. A solid and sophisticated assessment of target needs, at least in terms of writing, should presumably involve an insightful and systematic genre analysis. It would also involve the development of a corpus to help marry lexico-grammatical features to the array of functions or moves that have been highlighted in the genre analysis.  Clearly, to develop the above and have an appropriate level of discourse competence, EAP practitioners need both a broad knowledge base of their own discipline (Bruce, 2017) and the tools to enable them to step in and study or analyse authentic texts from a target discipline (Candlin, C.N., Bhatia, V.K. and Jensen, C.H., 2002).  However, novice practitioners rarely have these tools and knowledge. This is partly because the route to EAP work is often circuitous which means knowledge can be developed in a rather ad hoc way (Alexander, 2013) which can leave the practitioner feeling somewhat deskilled. This inevitably has consequences for course design and in particular what language should be placed at the forefront of those courses.  What follows is an outline of some ways a practitioner may attempt to address this issue, the first being to take a turn to the literature.

2. The literature: a coping strategy

The loss of certainty when embarking on the design of a course in a new discipline can be disorientating and destabilizing and one way of seeking some stability, and some language to teach, is to engage with research as a coping strategy (Ding and Campion, 2016). In relation to law there are four streams of literature which may be useful. EAP in a generic sense, ESP, EOLP (English for Occupational Legal Purposes) and also EALP (English for Academic Legal Purposes). Needless to say, this is a particularly extensive body of work. This volume of reading presents a number of challenges in itself.  It is time consuming, and without experience or a good working knowledge of the terrain it is difficult to understand the relevance and salience of much of the information. This is particularly true in terms of language for law.  As Bhatia (1987) has outlined, language for law is a broad church. Genres encompass a range of spoken and written texts across professional, academic and pedagogical settings. While this is interesting, frustratingly they actually provide little real benefit in terms of writing materials. This is mainly because there is a wealth of literature solely concerned with EOLP, which while interesting and offering useful pointers in legal thinking and how to write some professional genres (Legal Memoranda, etc.), actually offers little concrete help in how and what to teach students that are pursuing the academic study of law. This is more explicitly explored in English for Academic Legal Purposes (EALP). However, this still provides little constructive help. Although written some time ago there is still some relevance in Feak and Reinhart’s (2002:21) suggestion that ‘the lack of informed research in academic legal English continues to pose challenges in curriculum and materials development.’ This may be because, in terms of language and writing, nearly all of the research omits close analysis of the legal academic essay. This is perhaps due to its rather ‘protean/ amorphous’ nature (Weber, 2001: Belcher, 2004:169). The sheer number of rhetorical options in essay writing makes it difficult to unpack a pattern of moves revealing an obvious and teachable range of functions and language that can be taught effectively. Since in the context in Leeds/Law, nearly the entirety of students’ assessment will consist of the long essay, this blind spot is unhelpful and is perhaps an example of how the EAP and EALP literature can at times miss what should be one of its intended aims, to speak to the practitioner, and in turn drive course development.

This does not however mean there are no resources. In fact, there are writing guides for native speakers, Foster’s (2007) How to Write Better Law Essays being a particularly good example. This guide helps make explicit the expectations of the discipline and what a good law essay is expected to look like. Unlike almost anything in the EALP literature, it makes use of student models and provides some demonstration of how knowledge is organized discursively and how it’s presented critically in law, very useful for the non-law specialist in EAP. They are also written for students, so are practical, which in turn lends itself to material development. However, there are a number of disadvantages.  Only a small part of this book focuses on the actual discourse of the subject. It is a very small well of information to draw enough materials for a summer long course. It is also targeted at undergraduate students and, although some basic rhetorical functions are clearly expressed, there is much that is left unexplored. For example, there is no indication of what range of lexico-grammatical features operationalize these functions. The guide is simply not written from that perspective.  Despite this, for a novice EAP practitioner, they do add to any growing understanding by providing some explanation of why legal academic essays are written in a certain way. However, there is no guidance as to what language is important, or useful, or how it could be employed effectively.

Putting to one side the possibility that subject experts in law are already providing more practically applicable materials than EAP practitioner/researchers, the above highlights that the time consuming and rather complex process of surveying the literature can often be unfruitful and ultimately discouraging. It is not news to mention that teachers often struggle to see the relevance of research in teaching (Borg 2007) and in this case this comment may tentatively be broadened to include much of the relevant existing literature in EALP. So, when searching for solid ground from which to make principled decisions about courses, and the language that goes in them, this body of literature can feel like a hindrance rather than a help.

With the difficulties of engaging in the literature and perhaps, in the novice practitioner’s case, a slightly shaky knowledge base, it is therefore comforting to lean on institutional norms. In fact, in some ways what happens in a particular institution is the knowledge base. It is inevitable that this will then influence subsequent course development. This has many benefits, not least a guarantee of some quality and the passing on of knowledge hard-boiled through experience.  Unfortunately, it becomes problematic when this is less of a homage to excellence but a need to “reproduce existing practice” (Ding and Campion, 2016:557). This can mean a move away from language towards a focus on skills if institutional restraints mean presessionals are rather limited in terms of time, perhaps a UK-wide problem in EAP (Turner, 2004). In law, one problem with this is general academic skills only partially map onto legal skills. For example, there are a significant range of ‘skills’ which relate to sources of law and navigating these areas (see Finch and Fafinski, 2013). Taking referencing in law as an example, it is simple to say referencing is important, a given; it is also a fairly straightforward task to discover that OSCOLA is the system used. In this sense the skill is transferable, we can talk about plagiarism and synthesizing sources too, perhaps argumentation in conjunction with referencing. However, what is less obvious is how strongly this is interwoven with other aspects of legal skills and the creation of knowledge in law. There are fundamental differences, the nature of the sources being one example. Primary sources are statutes and cases. This includes the voices of judges and dissenting judges which are often quoted. In this sense the language is the law. Secondary sources are academic articles. In both cases all voices are intertextual and speaking to one another in some way while deeply embedded in the legal system. A concrete entity which embodies legal thinking. The way this structural difference bleeds into the language, legal argumentation, and the epistemological concerns of students demonstrate that an understanding of referencing as a general skill is insufficient. So, even if as a failsafe the course designer focuses on skills, there is a lot of ‘content’ knowledge that is obscure for those with an EAP background which directly affects the discourse of the discipline.

One other point to make regarding the teaching of skills in the local situation- in this case Leeds- is that students are already taught on a compulsory module in the law school, ‘Postgraduate Legal Research Skills’. This touches on referencing, good scholarship, as well as making academics’ expectations of what constitutes good legal writing explicit. Consequently, the presessional course should avoid an excessive focus on skills or at least be sensitive to any limitations within the local context. Partly because it is straying into an area where teachers lack knowledge, but also to avoid replicating what is already traditionally taught on the law course. Again, this leaves a small, but not unimportant, language shaped gap for the EAP practitioner to squeeze into.

If we do want to sharpen the focus on some language, which language should be prioritized? The limited time frame imposed on presessional teaching requires that close consideration be given to frequency, range and learnability when selecting which academic English is to be taught. However, without a principled analysis of student writing from a needs analysis, what exactly this language is is problematic. One way of making this decision is teaching language through texts. So, useful language will be revealed in the texts which students read. This can provide two learning opportunities; one for direct learning of useful language and the other as a way of modeling good language learning. This is undoubtedly vital for students’ further studies but problematic in other ways. One being notions of specifity. On the law course in question, the topics chosen to develop students’ knowledge of case law are statutory interpretation (homosexual partners’ rights) and the balancing act between freedom of speech and privacy. As at least 90% of the students on the presessional in Leeds will go on to study International Business Law, the opportunities to introduce topic specific vocabulary, or the threshold concepts it carries, are limited. Another issue may be that language is selected because it’s easy to identify. For example, when reporting the court’s decision, the verb ‘held’ is used. This is undoubtedly useful, but it is very easy to identify the “move.” It is simply referring to a primary source. Teaching “the court said,” is conceptually simple and it may be something students could quite quickly discover themselves. A further problem may be caused when the vocabulary and phrases that are taught are text led.  The language chosen is unsystematic. The texts cannot cover all salient features. Some areas may be under-exemplified while others may not be featured at all. Further, the majority of the required reading is not necessarily good student models, rather professional writing or judges conveying their judgments in cases. This means the language can be overly complex, obscured by difficult content, or interesting features may be more rarely exemplified. A final consequence of this approach is that language mined from texts may not be recycled or taught effectively, students are often not asked to actually work with the language in any way but simply to highlight and record. This may be because it is difficult to design good activities which reactivate language in the context of the discipline or because of time restraints it is easier to place this part of the learning process under the umbrella of autonomous learning.

Another more systematic way of teaching language from text is to focus on models of student writing. In terms of language for writing, this is often more helpful than the majority of texts read by the students. However, this is also problematic. Returning to the literature, the majority of research into student’s legal writing, however informative, focuses on a particular type of undergraduate writing in law: the problem question (Howe, 1990, Weber 2001, Bruce, 2002). This is where students are asked to assess a scenario and apply the relevant law. Perhaps one reason why this is well covered is precisely because it has a very exact structure and clear functions and so lends itself to analysis. Regardless, postgraduate students at Leeds are not required to write problem questions. There has been one piece of excellent work on semi-technical language in student’s legal writing (Maher, 2016). This corpus-informed research highlights a range of language from student writing in law, primarily relating to referring to sources and language which allows writers to take a position in the text. This is useful. It can certainly be added to a syllabus which is then given some face validity for students wisely expecting some explicit language instruction. However, as Bruce (2017) has highlighted, applying “micro-level findings” into specific genres is problematic without the required pragmatic knowledge. So, to apply these findings effectively they have to be understood within the broader context of the target genre. Not knowledge the novice practitioner will always have. It is also only the beginning of the process of writing materials. There is much more work to be done to be able to contextualize this language, not simply list it, to harness it to content so the students are motivated by it, and to design activities so they are motivated to reuse it.

Another broader problem in terms of language selection is considerations of specificity and how decisions are affected by expertise in the target disciple. The debate appears to rest on whether teachers should or shouldn’t teach content, and if they do teach it, whether they may be outside their remit. However, this misrepresents an important part of an EAP practitioner’s role. Expertise should include a working knowledge of the target discipline’s epistemology (Bruce, 2017) and in law to understand this fully, you need to understand the system of law and have some experience of how the law develops in certain areas. In other words, content. As Candlin et al (2002:314) stress, ‘legal concepts and the language that expresses them form a dense, precisely interwoven texture which blurs the distinction between language and content. Moreover, in law, language does not always simply serve as the vehicle to express the subject matter; on occasion it actually constitutes the subject matter.’

Understanding something of the law is hugely helpful when considering material and making some of the choices outlined above. So, when selecting language, and hopefully the functions that they help students perform, teachers need to know how these fit into the specific epistemological tradition. In some subjects this may be more readily apparent, however in law, there are very specific ways of thinking, reasoning and understanding. As Feak and Reinhart (2002:21) note ‘successful adaptation is dependent on the instructor’s having some familiarity with the conventions of academic legal discourse in particular and the legal system in general.’ Unfortunately, this is, and has to be, a slow process (Davies, 1987).  One that Davies suggests takes undergraduate students the majority of their studies. For the EAP practitioner this process is lengthened by the fact that their analysis only includes a small selection of texts, and is complicated by the lack of engagement in some of the breadth of reading and hard thinking involved in written assessments. If we are expected to equip students with the literacy of their discipline, then it appears obvious you need to have more than a superficial awareness of what that entails. If the teacher is not expert in the subject, but an expert in EAP, then perhaps they would have the tools to construct a good corpus and work this data in tandem with a profound, principled genre analysis. However, as has been previously discussed this is not always the case.  As Swales (1986:18) observes, ‘there must be an apprenticeship to the genre.’ And in law understanding genre is as much about the content, community and its discourse, as about simply understanding the text. So, although not expected to be content experts, it is difficult to see how an EAP practitioner can do their job properly without some fairly deep engagement in subject specific discourse and content. Of course, the benefits of this are numerous, one being that developing understanding allows practitioners to engage in literature and research more effectively and efficiently and also, in terms of agency, it allows the practitioner to engage with and question academics in the law school more productively and precisely.

3. The developing EAP practitioner and agency

Clearly one way of supporting developing expertise is building good relationship with the law academics. As Addison and Crowe (1992:480) suggest, language teachers will need the support of the legal academics throughout, as without this co-operation, the materials are likely to miss the mark in some aspects. Asking for this support and asking the right questions can be a rather intimidating task. To approach these interactions on a level footing, the EAP practitioner needs to raise their game significantly. It could be argued that in EAP there is a significant expertise which allows for a balancing of power in the relationship with a subject specialist. As Ding and Bruce (2017:3) suggest ‘specialists in the subject disciplines (that EAP students aim to enter) are not discourse analysts, and that investigating and understanding disciplinary language use (shaped by epistemology, practice and genre) requires specialist theory and analytical methods drawn from applied linguistics.’ However, this is not always the position of the novice practitioner and arguably, in law, the academics do have a deep understanding of disciplinary language. It’s their trade. Of course, being able to collect systematic data would enable us to ask the right questions and develop the agency to drive decisions. In Leeds, the materials are chosen by the law school, then the EAP work is done from these texts and tasks. If there is some lack of confidence or understanding from the EAP practitioner, it can make it harder to push for adjustments or changes to materials, or even be aware of particular issues, until the course has been taught a number of times. This makes control of the conversation around course design complicated and importantly, the lack of control, or the lack of feelings of control, can significantly affect one’s willingness to engage in the process at all. For an EAP practitioner wanting to move beyond this rather demotivating position they may have to invest in developing their expertise.  Not to be an expert in content, but an expert in how content is constructed, and perhaps alongside this, develop some interest in the discipline too. Clearly if we expect EAP tutors to be subject specialist we are on shaky ground; working with a physics department, for example, would transform what it means to be an EAP practitioner in terms of moving away from language and into content, but this should not prevent some effort, especially in a subject such as law, which is complicated but certainly not beyond EAP teachers.

So, even though novice (apprentice) practitioners may acquire good knowledge through experience and institutional norms, when moving towards specificity this understanding can be put under severe stress. To cope with this, and to try and inform and lead decisions, it is imperative to engage in a broad range of literature, despite its limitations, and in the discourse of the discipline being entered into.  Then the aggregation of this research and practice can accumulate into a more solid, substantial understanding, and each can in turn offset the potential weaknesses of the other. Perhaps, as a result, this may enable the practitioner to get back, or closer to, the intellectual endeavor of teaching language (Turner, 2004) and to remain motivated and engaged enough to drive decisions, course development and their own professional development. In this sense, academic Law is an opportunity to do a “purer” form of ESP and to develop expertise. It also means that decisions can be grounded in a theoretical and professional context. Even if when finally made, those decisions are not actually too far removed from the original, less informed ones.

Address for correspondence:

c.pajak@leeds.ac.uk

 

References: 

Addison, W. and Cownie, F., 1992. Overseas law students: Language support and responsible recruitment. Journal of law and Society19(4), pp.467-482.

Alexander, O., 2013. The leap into TEAP: The role of the BALEAP competency framework in the professional development of new EAP teachers. Professional and Academic English: Journal of the IATEFL English for Specific Purposes Special Interest Group42(2).

Belcher, D.D., 2004. 8. Trends in teaching English for specific purposes. Annual review of applied linguistics24, pp.165-186.

Bhatia, V.K., 1987. Language of the law. Language Teaching20(4), pp.227-234.

Borg, S., 2007. Research engagement in English language teaching. Teaching and Teacher Education23(5), pp.731-747.

Bruce, I 2017. EAP. BALEAP ResTes-  Knowledge and the EAP Practitioner: a symposium, 28 January, Leeds University

Bruce, N., 2002. Dovetailing language and content: Teaching balanced argument in legal problem answer writing. English for Specific Purposes21(4), pp.321-345.

Candlin, C.N., Bhatia, V.K. and Jensen, C.H., 2002. Developing legal writing materials for English second language learners: Problems and perspectives. English for Specific Purposes21(4), pp.299-320.

Davies, M., 1987. Reading cases. The Modern Law Review50(4), pp.409-431.

Ding, A. and Bruce, I., 2017. The English for academic purposes practitioner: Operating on the edge of academia. Springer.

Ding, A. and Campion, G., 2016. EAP teacher development. In The Routledge handbook of English for academic purposes (pp. 571-583). Routledge.

Feak, C. and Reinhart, S. 2002. “An ESP program for students of law. In English for Specific Purposes. T. Orr (ed), 7-24. Virginia: TESOL.

Finch, E. and Fafinski, S., 2013. Legal skills. Oxford University Press.

Foster, S., 2006. How to write better law essays: Tools and techniques for success in exams and assignments. Pearson Education.

Howe, P.M., 1990. The problem of the problem question in English for academic legal purposes. English for specific purposes9(3), pp.215-236.

Maher, P., 2016. The use of semi-technical vocabulary to understand the epistemology of a disciplinary field. Journal of English for Academic Purposes22, pp.92-108.

Swales, J., 1986. A genre-based approach to language across the curriculum. Anthology Series, SEAMO, 15, 10-22

Turner, J., 2004.  Language as academic purpose, Journal of English for Academic Purposes, 3, pp. 95-109

Weber, J.J., 2001. A concordance-and genre-informed approach to ESP essay writing. ELT journal55(1), pp.14-20.

Author

Chris Pajak is a Teaching Fellow in the School of Languages, Cultures and Societies at the University of Leeds.  He is the strand leader of the Language for Law presessional...
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