a. Context

McMaster University is one of twenty publicly funded universities in Ontario, Canada and provides a wide range of undergraduate, graduate, and professional programs to approximately 21,000 students.^{Footnote 7} Arts & Science is a small interdisciplinary liberal arts program that accepts approximately sixty-five students per year. It was founded in 1981 with the goal of enabling students to “understand the modes of inquiry that characterize the different disciplines.”^{Footnote 8} Today, admission is highly competitive. The program is characterized by small class sizes, collegial relationships between professors and students, and the cross-pollination of ideas between courses. At McMaster University, there is no law school and no department of legal studies, though there are selected law-related courses offered in various disciplines across the university.^{Footnote 9}

Arts & Science students must complete 12 units of Inquiry courses to graduate. In the first year, all students take a six-unit Inquiry course relating to the developing world and then choose from among a range of one-semester, three-unit third- and fourth-year courses. Inquiry courses invite students to conduct research in an area of social relevance using a “self-directed question-driven search for understanding.”^{Footnote 10} Students formulate a “set of questions that provides a framework for research”^{Footnote 11} and use those questions as guidelines for “interpretation, critique, and revision” of further questions.^{Footnote 12} Over the years, Inquiry courses have covered a broad range of subject matter and disciplines.^{Footnote 13} Legal Inquiry was the first course relating to law.

Sven Poysa and I co-taught Legal Inquiry in term 2 (winter) of 2010–11 (“Year 1”), 2011–12 (“Year 2”), and 2012–13 (“Year 3”), and in term 1 (fall) of 2013–14 (“Year 4”). Approximately twenty-five students took the course each year.

b. The Spirit of Legal Inquiry: Demystifying Law

We taught this course to advance two convictions about legal education. First, we believe that the study of law can benefit all students, not just those who want to become lawyers. Second, we think it is important to disrupt a prevalent image of law as containing clear, definitive answers perfectly captured by state legal forms and accessible only to the specially trained. We wanted to demystify law in two senses: (1) to denature the mystery of law, created by its image of inaccessibility, by equipping students with the knowledge, skills, and confidence to approach formal legal materials; and (2) to shatter law’s mystique by instilling in students an instinct to approach law critically—to see gaps in, and engage in constructive alternatives for, the legal regulation of social problems, and to realize that formal state law only partially captures the rules and processes that structure human behaviour.

The title of the course embodies the demystification objective. Law is often perceived (and constructed in popular culture) as a domain of determinate answers, clear rules, and objective truth. Inquiry asserts the opposite—that knowledge is open-ended, indeterminate, and constructed by the thinker. We wanted to help students discover how these two concepts do not, despite first appearances, contradict one another.

We were heavily influenced by the writing and teaching of Roderick Macdonald. For Macdonald, law is “the endeavour of symbolizing human interaction as being governed by rules.”^{Footnote 14} This view, elsewhere called a “critical legal pluralism,”^{Footnote 15} rejects the notion that legal authority is coextensive with pedigree. It asserts that all human activity can be conceived as legal to some extent, since all human behaviour can be understood (or “symboliz[ed]”) as having to do with rules and humans’ relationship with rules. Critical legal pluralism “requires human beings to appreciate their own norm-constituting potential . . . and to accept that interaction is fundamental to all normativity.”^{Footnote 16} This includes the recognition that normativity need not be expressed in “the written words or symbols of a natural language.”^{Footnote 17} An important corollary is that everyday life contains legal problems that are analogous to those addressed by courts and legislatures.^{Footnote 18}

Law in the Macdonaldian sense and inquiry in the Arts & Science sense are mutually reinforcing. The critical pluralist account of law, by placing informal, everyday law on the same footing as formal law, conceives of the individual as a jurisgenerative agent—“law-inventing,” not merely “law-abiding.”^{Footnote 19} Law is neither created nor defined by virtue, solely, of extrinsic authority; rather, law resides in the individual’s own behaviour, attitudes, and responses to the normative matrix in which he or she is situated.^{Footnote 20}

The student in the Inquiry classroom finds him- or herself in a similar position with regard to the research process. Nothing—and no one—predetermines or mandates the student’s choice of topic or process of investigation. The student is free, within certain parameters, to define the terms of his or her inquiry. Both inquiry-based research and the critical legal pluralist approach to law conceive of the individual as agent.

Despite the centrality of agency in both visions, neither repudiates structure or constraint. The critical legal pluralist account does not disregard formal law; it simply asserts that formal norms are not the sole or most important source of law, and that they do not prescribe conduct unilaterally to passive “legal subjects.”^{Footnote 21} With inquiry-based research, there is, equally, no desire to cast aside substantive knowledge. Inquiry-based research should serve to “incorporate the reflexivity of knowledge into the process of investigation,”^{Footnote 22} not do away with knowledge acquisition altogether.^{Footnote 23}

c. Learning Objectives and Course Design

We pursued four distinct learning objectives as a means to demystify law. First, we wanted to familiarize students with the three branches of government and their distinct roles, processes, and legal artefacts. Much of law’s perceived mystery comes from the conflation of various players and levels of legal hierarchy, and we felt that any useful course would at the very least equip students to distinguish among formal sources of law.

Second, we sought to cultivate certain intellectual skills commonly employed in legal study and practice, including the ability to understand, summarize, and deconstruct judicial reasoning; to interpret statutes; and to develop an instinct for precision and rigour in writing. A source of law’s mystique is the sense that only the technically trained can truly engage with law. We wanted to show how a few weeks of dedicated work could empower students to access law.

Ancillary to this, we wanted students to reflect on the extent to which such “legal reasoning” skills might constitute “disciplinary” competencies. Do the skills involved in reading legal texts resemble the skills they have developed in their other courses, or is there something special about them? Arts & Science offers variegated models of interdisciplinary education.^{Footnote 24} We hoped students would reflect on the claim that law is a distinctive discipline^{Footnote 25} but also see that inquiries into law can beneficially draw from—and be inserted into—other disciplines.

Third, we wanted students to internalize the critical legal pluralist perspective. We wanted them to consider that law has multiple sources and forms, including everyday life. We wanted them to cultivate a sense of their own agency relating to law and to question the “five tenets of legal orthodoxy” articulated by Roderick Macdonald.^{Footnote 26}

Fourth, we wanted our students to approach law critically. Specifically, we wanted students to challenge the arguments and devices used in the legal texts they read; to question the effectiveness of legal regulation; to reject the authority of legal forms qua legal forms;^{Footnote 27} to see how tensions and themes recur in different areas of the law^{Footnote 28} and how they might point toward universal challenges; to understand law as a site of political contestation;^{Footnote 29} and indeed to challenge the ways in which we presented law in the course.

We pursued all four objectives in all classes, although certain objectives corresponded more directly with certain aspects of the course. Part I of the course, Foundations of Canadian Law, explored the rule of law and Canadian constitutionalism. This part included readings by A. V. Dicey,^{Footnote 30}Roncarelli v Duplessis,^{Footnote 31} and the texts of, and cases on, the Constitution Acts of 1867 and 1982.^{Footnote 32} In Year 4 we introduced Customary and Informal Law, a class focused explicitly on legal pluralism.^{Footnote 33} Students had to visit a site of law and describe and reflect on their experience in a written assignment.^{Footnote 34}

Part II of the course, Fundaments of Legal Reasoning, focused on “skills.” It included a class on common law reasoning,^{Footnote 35} legal realism,^{Footnote 36} and statutory interpretation.^{Footnote 37} Students completed a case summary assignment on two short cases^{Footnote 38} and an exercise in negotiation and drafting of a code of conduct for the Arts & Science office and library.

In Part III, Case Studies, we critically examined various legal approaches to specific social problems. We endeavoured to model the task of their 5,000-word final assignment—to “perform a critical ‘legal inquiry’ on an issue of social relevance.”^{Footnote 39} We selected diverse topics^{Footnote 40} to illustrate the wide range of possible issues and critical approaches. We also used each case study to model the different conceptual problems implicit in the task of conducting a “critical legal inquiry.” These were to (1) identify an issue of social relevance, (2) identify an intersection with law (formal or informal), and (3) provide a critical analysis.^{Footnote 41} In Year 4, our first case study invited students to read a decision on the patentability of genetically altered mice^{Footnote 42} to identify a wide range of related social concerns. In a case study on prostitution, students particularized potential areas of legal intersection by researching and crowdsourcing a bibliography of legal resources.^{Footnote 43} For the third study, on corporate social responsibility,^{Footnote 44} students composed paper titles suggestive of different critical approaches to the issue.^{Footnote 45}

In some years, our introductory class has invited students to reflect on how law intersects with a given social problem (prostitution),^{Footnote 46} and in other years, to reflect on the limits of formal law in addressing human problems (family law).^{Footnote 47} Our final class compares liberal arts legal education with law school^{Footnote 48} and revisits the theme of legal pluralism.

a. Demystifying Law By Inculcating Knowledge and Skills

Students state with some regularity that course objectives included skill development (43%) and knowledge acquisition (41%). Almost a third (29%) state that the course has made law seem more accessible, with almost a quarter (24%) using the precise term “demystify.” Student responses also suggest that these objectives were well achieved.^{Footnote 50} The mean grade of A- over four years would seem to corroborate this observation.

That being said, students have expressed the occasional reservation or qualification.^{Footnote 51} One student referred to a “hasty and incomprehensive understanding of issues” resulting from the priority we placed on critical evaluation,^{Footnote 52} and another stated that the course made law “even more intimidating than I once thought.”^{Footnote 53} The fact that students perceive gaps in the acquisition of knowledge is a concern, but it may also be part and parcel of an approach to legal education that aims to complicate the notion of law. Students themselves appear to doubt whether acquiring “knowledge” or seeing the “big picture” is “appropriate”^{Footnote 54}—a problematizing self-critique that is perfectly in line with our goal to communicate a plural conception of law.

b. Critical Legal Pluralism

We intended to convey to students that law is simultaneously formal and informal, implicit and explicit, and that it manifests itself in everyday life. In the first three years of the course, as judged by student responses on course evaluations, we did not do so well. In Years 2 and 3, only five out of thirty-five student responses reflected the theme. By contrast, in Year 4, over half the class (52%) did. What may account for this is the manner in which we responded, in Year 4, to the following self-critique of the first three years.

When we designed the course, we made an explicit decision to rely primarily on formal sources of law. We did so in order to make formal law seem less mysterious and more accessible. This emphasis, however, may have counterproductively privileged formal law. While we tried to emphasize that the formal sources of law were only examples of normativity, and that students should think of them as models for better understanding the rules, standards, and processes in their own lives, this may have been too ambitious a goal. It is hard enough to complete “dense,” voluminous, and “intimidating” readings, and to understand and critique them.^{Footnote 55} Expecting students to consider them at a higher level of abstraction was probably unrealistic.

Second, our treatment of informal and everyday law may have been too explicit and didactic. In the first three years, aside from one exercise in our final class (in which students designed a process for allocating different flavours of cupcakes, inspired by a story in Lessons of Everyday Law),^{Footnote 56} we largely lectured about legal pluralism, rather than embodying its lessons in a truly heterogeneous mix of assigned readings, in-class exercises, and assessment tools. Such an approach may have subverted one key insight of legal pluralism: that the explicit (or “manifest”) conveys only a very partial understanding of law and human behaviour.^{Footnote 57}

Third, we may have insufficiently integrated the theme of legal pluralism throughout the course. In Years 2 and 3, we placed references to legal pluralism at the “bookends” of the course, in an early class about rule of law and in the final class on legal education. While we had hoped that this placement would frame the course as being about more than formal law, it may have also enabled us (instructors and students) to bracket the insights from legal pluralism elsewhere in the course.

None of this is to say that the theme of legal pluralism was absent in the first three years, or that its explicit identification in course evaluations is the only or best metric. One student in each of the first three years incorporated informal law into the final paper,^{Footnote 58} and a final class in Year 3 yielded an overwhelming student response to the question of how Lessons of Everyday Law complemented the material in the rest of the course. Nevertheless, we felt an acute sense of missed opportunity and introduced some reforms in Year 4.

Our most significant change was to add a class on customary and everyday law, and to place it in the Foundations section of the course. Students spent the first thirty minutes of class observing (in groups) different environments within the university, then came back to class to reflect on how what they observed was “legal.” One discussion was particularly fruitful. Students reported on a sign posted on a piano room in a residence building that prohibited playing the piano late at night. Students offered various explanations for the this rule’s source: past experience; general notions of etiquette; “morality”; the desire to maintain good neighbourly relationships; the fact that residents from other floors might not be aware of the proximity of the piano room to ground floor bedrooms; the understanding that the residence was a “home away from home.”

When we pointed out that none of the sources identified was the sign itself, a light bulb went off: students appeared to grasp the Macdonaldian point that relationships, not formal artefacts, found law. We then followed this discussion with examples of “non-chirographic” norms—chimes from a subway platform, a picture of a bee on a urinal, a no-eating sign.^{Footnote 59} We then lectured on the assigned readings, by which point students had an experiential basis for understanding the theoretical points.

We also amended the first assignment of the course to ask students to visit sites of formal and informal law, and to describe, reflect on, and compare the two experiences. Every student therefore had to discover informal law, articulate it, and analyze it; this may have served to keep the themes top-of-mind throughout the course. Five students identified the new class as their favourite,^{Footnote 60} and at least three student papers incorporated themes of legal pluralism.^{Footnote 61} There is plenty of room for improvement,^{Footnote 62} but we are encouraged by the twelve students who identified themes of legal pluralism in the course objectives, and by such student comments as:

c. The Increased Emphasis of “Critical”

The goal of developing critical thinking lies at the forefront of a liberal arts education.^{Footnote 64} The Legal Inquiry student is not examined on the details, and there is no professional telos to the Bachelor of Arts & Science degree. There are correspondingly fewer barriers to the discussion of policy, context, or politics than in law school.^{Footnote 65} This makes Legal Inquiry an especially amenable environment to develop what it might mean to be a “critical” thinker with respect to law.^{Footnote 66}

We decided to emphasize this feature in Year 2, when we rephrased the final paper assignment from “conduct a legal inquiry” to “conduct a critical legal inquiry.” We re-wrote the assessment criteria to emphasize the student’s demonstrated ability to engage critically with primary and secondary sources. In Years 3 and 4, in each class and especially the case studies, we highlighted a different critical mode.^{Footnote 67} We wanted, in the words of one Year 3 student, to “[u]npack what it means to be critical.” And while we agree with that student to the effect that we “g[o]t close, not quite there yet,” there are promising developments.

Over half the students (55%) in Years 2–4 used the word “critical” or “critique” to describe the objective of the course—the most-cited course objective. Moreover, students in Years 3 and 4 generated a sophisticated list of what it might mean to exercise critical thinking in law. Not only is the list impressive, but also, for almost every question, we can retrospectively find an example of a student paper.^{Footnote 68} The following list combines notes from class discussion in both years:^{Footnote 69}

• • Whose interest is served by a particular policy or rule?^{Footnote 70}

• • How does a policy or rule actually affect certain individuals or classes of people (as distinguished from intended effects)?^{Footnote 71}

• • Is the choice of legal instrument appropriate to the social problem?^{Footnote 72}

• • What insight does a historical perspective offer?

• • What can we learn from practices in other jurisdictions?^{Footnote 73}

• • What recommendations would further the rationale behind a rule or policy?^{Footnote 74}

• • How are the fundamental premises of a rule or policy problematic?^{Footnote 75}

• • What perspective does viewing the issue from a lens of class, race, gender, religion, colonialism, or (dis)ability offer?^{Footnote 76}

• • What can a Marxist or structural-theory approach tell us?

• • What ethical issues are raised?

• • What are the environmental consequences of a particular legal choice?^{Footnote 77}

• • How can we unpack loaded concepts?^{Footnote 78}

• • In what ways are current legal structures limited in their ability to resolve complex social issues?^{Footnote 79}

• • Can informal law shed a light on the issue?^{Footnote 80}

The fact that students are able to identify such a rich list, and that many have pursued such inquiries in their final papers, suggests that many believe not only that law is worthy of critique but also that they have the agency to ask such critical questions. By articulating and performing what it means to be critical of law, students put in their own words what it means to demystify law, and why “legal” and “inquiry” belong together.