Introduction
The law has traditionally set itself apart from its often messy subject matter by holding itself out as a bastion of reason and rationality.Footnote 1 In doing so, it has treated emotionsFootnote 2 as separate from, and largely irrelevant to, legal mattersFootnote 3 – thus setting the context for their treatment within legal education. In philosophical terms, natural law theory viewed law as a branch of the natural sciences, focusing on the extraction of stable and universal governing principles rather than the possible influence of short-term, tempestuous emotions.Footnote 4 The development of legal positivism only served to increase the focus on law as a form of rational, reasoned science with its separation of the descriptive from the normative and its emphasis on the work of establishing legal principles as a ‘neutral, non-evaluative exercise’.Footnote 5 This philosophical focus on objective, scientific legal exploration has significantly influenced the development of the traditionally dominant paradigms within undergraduate legal education in England and Wales.Footnote 6
Although legal philosophy has largely ignored emotions, when applying the law in practice, the presence and influence of emotions has been harder to disregard. Law's role in regulating individuals’ behaviour brings it into contact with the full gamut of human passions.Footnote 7 The ‘loss of control’ defence in relation to manslaughterFootnote 8 and the use of Victim Personal StatementsFootnote 9 are both examples reflecting a certain acknowledgment of emotions within the sphere of criminal law. However, such instances are relatively rare and ‘vigilant policing’ is used to avoid emotions infringing significantly into both civil and criminal legal matters.Footnote 10 This desire to suppress or disregard emotions where possible is perhaps seen most clearly in the role of the judiciary and the jury in court cases. The judiciary is required to operate in an emotionless sphere, adjudicating disputes ‘without fear or favour, affection or ill will’.Footnote 11 Juries are cautioned that they should not allow themselves to be influenced by any emotional reaction to the case in their deliberations.Footnote 12
This paper will begin by focusing on how the law's overall conceptualisation of emotions as irrational, and therefore irrelevant, has influenced the development of undergraduate legal education in England and Wales. In particular, it will consider how the traditionally dominant paradigms within the law school (the doctrinal tradition and the liberal tradition)Footnote 13 have perpetuated this approach. Drawing on recent scientific and educational developments, this paper will argue that emotions have a significant and inescapable role to play in different facets of the law school. Defining transformation as ‘the action of changing in form, shape or appearance’,Footnote 14 it will suggest that utilising emotions, rather than disregarding or suppressing them, will have transformative effects in relation to the learning of law, the development of legal skills and in the promotion of law student and legal academic well-being. Such a transformation into a more holistic and well-balanced form of education would offer positive and long-lasting effects for the law degree and its stakeholders.
I. Cartesian dualism in the doctrinal and liberal traditions
Somewhat ironically, given the subject matter of this paper, the gradual transformation of legal education in the nineteenth century had the effect of ensuring emotions were suppressed or disregarded within the law degree. Sugarman discusses the development of the ‘textbook tradition’ of legal education (which can be broadly equated with the doctrinal tradition) and argues it sought to carve out an identity for university law schools by focusing on the development of a set of coherent, orderly legal principles which demonstrated law to be a ‘simple, unified, coherent whole’.Footnote 15
The impetus for this emphasis on law's internal consistency and logic was both ideological and practical.Footnote 16 The ideological impetus arose from the development in liberal thought by thinkers such as JS Mill.Footnote 17 This characterised law as an instrument to create the boundaries between an individual's rights and their infringements upon those of others.Footnote 18 The pragmatic impetus for the development of the doctrinal tradition stemmed from the need to improve the quality and status of legal education in England and Wales following the 1846 Select Committee on Legal Education's conclusion ‘that no Legal Education, worthy of the name, of a public nature, is at this moment to be had in either country’.Footnote 19 Focusing on the extraction of legal principle offered the potential for legal academics to carve out their own niche, positioning them as offering a valuable service to the legal profession (and others). Perhaps unsurprisingly, following the Select Committee's indictment, innovations within US legal education such as the ‘case method’ and ‘Socratic method’ were also increasingly influential in legal education in England and Wales towards the end of the nineteenth century (originating from Harvard University under Christopher Columbus Langdell as Dean from 1870 to 1895).Footnote 20 These methods of study focused heavily on law as scientific process of thinking:
Law, considered as a science, consists of certain principles or doctrines. To have such a mastery of these as to be able to apply them with constant facility and certainty to the evertangled skein of human affairs, is what constitutes a true lawyer; and hence to acquire that mastery should be the business of every earnest student of law.Footnote 21
The doctrinal tradition therefore offered a seemingly neutral and objective, non-emotive, method of analysing and synthesising the law and extracting autonomous legal principles from the jumble of the common law.Footnote 22 Since its evolution, and especially in recent years, these purported characteristics have been heavily critiqued, particularly in relation to their claims to neutrality and objectivity.Footnote 23 The status of this tradition within the contemporary law school is also widely debated.Footnote 24 Nevertheless, although the issue of whether or not the doctrinal tradition is the dominant approach to undergraduate legal education remains contentious, it is clear that it does still play a significant role within it.Footnote 25
The traditional dominance and continuing significance of the doctrinal tradition has arguably led to a continuing disregard for, and suppression of, emotions within undergraduate legal education in England and Wales. Its focus on ‘so-called “science”’Footnote 26 demonstrates the desire of the law to preserve reason in its purest form without attempting to sully it with the messy and complicated tapestry of emotions to which it perceives itself as bringing order and rationality. The perceived neutrality and objectivity involved appear to leave no room for emotions within the doctrinal tradition.Footnote 27 There is no acknowledgment of the interrelationship between reason and emotions or understanding of the ways in which emotions permeate the law:
Legal reasoning, although often portrayed as rational, does not – indeed, cannot – transcend passion or emotion. Instead, it is driven by a different set of emotional variables, albeit an ancient set so ingrained in the law that its contingent nature has become invisible.Footnote 28
Having defined itself largely through its relationship with the common law and its practitioners, the doctrinal tradition is often today associated with a vocationally-orientated form of legal educationFootnote 29 and a mastery of its principles is seemingly viewed as synonymous with the expression ‘thinking like a lawyer’.Footnote 30 It can, therefore, be contrasted with the liberal tradition of undergraduate legal education in England and Wales which, although diffuse in nature,Footnote 31 can be characterised as:
… One which does not focus on education for a particular purpose other than education itself. It is not aimed at preparing students for a particular job or profession and is not concerned with notions such as employability. It is, however, concerned with pursuing knowledge for knowledge's sake and developing skills of knowledge acquisition through research, critical thought and debate.Footnote 32
The liberal tradition of undergraduate legal education arguably provides an intellectual breadth that is missing from the traditional doctrinal tradition, allowing for the inclusion of socio-legal and other forms of legal scholarship.Footnote 33 Its focus on intellectual development as the end goal of undergraduate study and on universities as ‘like art galleries, being concerned with things that are good in themselves’Footnote 34 moves away from defining the law degree as preparation for the legal profession,Footnote 35 although a number of commentators have advocated some form of compromise between vocational and more liberal ends.Footnote 36 Overall, there is more emphasis on the development of a ‘good citizen’ or a ‘better person’.Footnote 37 These are terms which Burridge and Webb define as involving the creation of ‘rational participants in the life of the community’.Footnote 38 However, although this emphasis on the development of the citizen (or person) goes beyond the narrower focus of the doctrinal tradition, its focus still remains upon those qualities that have traditionally been prized as intellectual, namely, reason and rationality.Footnote 39 The emphasis is on the fostering of ‘cognitive qualities for analysis, reflection and self-discovery’.Footnote 40 There is little acknowledgment that this could or should involve emotions. It is the development of the intellect which is perceived as having transformative value, not the utilisation of emotions.Footnote 41
In this respect, both the doctrinal and liberal traditions mirror the form of Cartesian dualismFootnote 42 which has been dominant in Western society for centuries.Footnote 43 This perceives emotions and reason as occupying entirely separate domains and prizes reason above (and arguably at the expense of) emotions.Footnote 44 Solomon characterises it using a ‘master and slave’ metaphor – the irrational and potentially dangerous impulses of emotions must be suppressed and controlled by the ‘wisdom of reason’.Footnote 45 The doctrinal tradition's focus on the creation and analysis of a ‘scientific’ set of legal principles and the liberal tradition's emphasis on a particular set of intellectual characteristics both demonstrate the same approach to emotions, largely denying them a place within legal education.Footnote 46 This is perhaps justifiable if emotions can be shown to be entirely divorced from rationality, reason and other prized legal and intellectual concepts. However, if it can be demonstrated that emotions are in fact an integral and inescapable part of the academic endeavour, then this approach is arguably inadequate and misguided, and fails to harness their transformative potential.
II. Rethinking emotions, reason and legal scholarship
In recent years, scientific work on emotions has progressed beyond the traditional philosophical notions which have proved so enduring, and has begun to view emotions as intertwined with (or even a part of) cognitive functions such as reasoning and rationality.Footnote 47 For example, appraisal theories of emotions suggest that emotions are triggered by perceptions of stimuli within the environment and an evaluation of the impact of these on the person's well-being, thus making them inextricably linked to cognitive processes.Footnote 48 Emotions have been characterised as ‘dynamic processes that are integral to decision-making’,Footnote 49 with reason being impoverished and impaired if they are suppressed or disregarded.Footnote 50 Bandes and Blumenthal capture this transformative view of emotions well, arguing that they:
… Influence the way we screen, categorize, and interpret information; influence our evaluations of the intentions or credibility of others; and help us decide what is important or valuable. Perhaps most important, they drive us to care about the outcome of our decision making and motivate us to take action, or refrain from taking action, on the situations we evaluate.Footnote 51
Within legal scholarship, recent years have also seen considerable shifts ‘involving a bewildering diversity of subject matters, perspectives, objectives and methods’.Footnote 52 The most significant of these, in the context of England and Wales, is the growth of socio-legal studies.Footnote 53 This can be viewed as encompassing a multi-disciplinary approach across not only the social sciences, but increasingly the humanities and sciences (as exemplified by law and literature scholarship and work on law and neuroscience).Footnote 54 The insights generated by this approach have arguably led to developments both in the content and breadth of legal research and in the way law is taught.Footnote 55 However, there is little evidence that such plurality has sought to challenge the traditional dichotomy between law and emotions overall. The changing landscape of legal education still largely refuses to acknowledge or utilise emotions.Footnote 56
One potentially significant challenge to this ingrained approach can be found in the emerging field of ‘law and emotions’ scholarship, which explores the role of emotions within a wide range of legal topics, from criminal justice to the work of the legal profession.Footnote 57 Nevertheless, literature specifically on emotions and legal education remains relatively sparse in this field.Footnote 58
It is arguable that the most influential critiques of the disregard for emotions in legal education can be found in critical legal and feminist scholarship within the US. In terms of critical legal studies, a classic example is Kennedy's polemic on US legal education, which describes a passivising initiation into the hierarchies of the law where ‘…it will appear that emoting will only isolate and incapacitate you’.Footnote 59 In terms of feminist legal scholarship, Sturm has described women in US law schools as akin to a miner's canary, suggesting that ‘when they fail to thrive in particular institutions, their experience is often a signal of a more general or systemic problem that affects a much larger group’.Footnote 60 Particular attention has been focused on the impact of the impersonal, adversarial nature of law schools and, again in the US context, there has been a significant critique of the emotional impact of conventional forms of teaching, particularly the Socratic method.Footnote 61 A body of work has also developed out of the therapeutic jurisprudence movement in the US, which argues for the centrality of emotions and well-being within clinical legal education.Footnote 62 For example, Baker suggests that:
The opportunity that exists by way of therapeutic jurisprudence to expose students in legal education to a humane, sensitive, empathetic and common decency approach to lawyering is one that should not be undervalued or overlooked.Footnote 63
This work provides useful insights and a recognition of the potential role of emotions, as well as hints of a transformative potential. However, such scholarship has arguably not yet developed into an in-depth analysis of its role within legal education and there has been little (if any) attempt to construct a full and cohesive normative theoretical framework for its acknowledgment and utilisation. Therefore, it is necessary to draw on a range of work from both education and psychology, as well as the existing literature on legal education, in order to fully examine the transformational potential of emotion within learning, skills development and well-being. This produces a wide view of the topic, in a way which is commensurate with this paper's overall argument for a more holistic, integrative form of legal education.
III. The role of emotions within legal learning
In recent years, student learning (as distinct from student instruction or education) has become the ultimate goal of educational policy and theory.Footnote 64 Within higher education generally, this is reflected in the dominance of a broadly constructivist approach to teaching which is commonly associated with teachers acting as facilitators and providing a student-centred, scaffolded approach to topics.Footnote 65 Although learning theories have (at least until recently) been somewhat neglected within legal education,Footnote 66 the introduction of concepts such as problem-based learning suggest that the law school is following the constructivist trend of higher education as a whole.Footnote 67
Constructivist learning theories do not view knowledge as an independent entity which can be mapped onto the individual. Instead, they argue that ‘humans create meaning as opposed to acquiring it’ (emphasis supplied).Footnote 68 It is the learner's experience, and their perception of these experiences, which have value in an educational setting.Footnote 69 This is in direct opposition to more traditional behaviourist and cognitivist views, which rest on the assumption that there is an objective reality and independent truths which human beings (through learning) are striving to uncover.Footnote 70 Although the link between constructivist learning theories and emotions is relatively under-theorised,Footnote 71 some commentators have argued strongly that students’ experience and creation of meaning has both cognitive and emotional elements, with Gates suggesting that ‘the constructionist model views the emotional not in opposition to the rational, but rather in partnership with the rational. To think and act rationally, one must feel’.Footnote 72 This ties in closely with the recent scientific work on emotions discussed above, which views emotions and cognition as inseparable. There is little (if any) literature on the role of emotions in constructivist learning theory which relates specifically to the law school. However, if the approach taken is broadly constructivist in nature, it appears that this implicitly includes an element of acknowledgment of emotions.
In particular, law students’ experiences, and therefore their learning, will be shaped by the emotions they feel towards the law, the law school and the subject matter of individual pieces of legislation and cases. Allowing, or even encouraging, them to draw on these emotions to construct learning experiences could be a very powerful tool within the law degree, making it a more meaningful and engaging form of education, for example, via the use of narratives or storytelling within the curriculum.Footnote 73 Such methods are in contrast to the transmissional, didactic style that has been more traditionally associated with the law degree, leading Allot to argue that:
With the power to communicate so much, we choose instead to have the students learn law as if it had the intellectual, spiritual and moral content of knitting patterns.Footnote 74
Even if a constructivist approach is not chosen, it is arguable that virtually all learning theories include a role for emotions in some way. Perhaps the sole exception to this are behaviourist theories, which focus solely on the measurable outputs and explain the learning process ‘in purely mechanistic terms’.Footnote 75 Although elements of behaviourism are retained in the law curriculum (for example, in learning cases by rote), in higher education generally such theories are no longer viewed as sufficient or dominant in themselves.Footnote 76 Another key group of learning theories can be termed as cognitivist, focusing on conceptualising the learning process by identifying the mental activity involved at each stage of it.Footnote 77 These have little explicit engagement with emotions, but their close links to constructivist learning theories and focus on cognition both once again imply a role for it. If emotions and cognition are intertwined, then both must be involved within law students’ mental and physiological activity when they actively engage with the learning experience.
Amongst the writings on legal education, there is a small body of work which seeks to promote the use of humanist learning theories.Footnote 78 It is this group of theories which arguably has the most active engagement with emotions as a part of learning.Footnote 79 This is particularly noticeable within adult education with the use of andragogy, a humanist-based theory which views learning as ‘an internal process controlled by the learners and engaging their whole being – including intellectual, emotional and physiological functions’.Footnote 80 Although humanist theories have often been linked with self-improvement, rather than more formal types of education,Footnote 81 their inclusion in the literature on legal learning does indicate an increasing willingness for there to be a more explicit recognition of the role of emotions. What is striking about such humanist theories is their compelling presentation of emotions as a transformational force. In recent empirical work with a group of humanities students, adopting humanist and constructivist approaches, Naude et al found that they:
… Promoted increased personal involvement in learning, broadened thought processes and actions, and resulted in change and development on emotional, cognitive, and behavioural levels.Footnote 82
Outside the specific writing on learning theories, there is a much larger body of literature which demonstrates the wider inter-relationship between learning and emotions. This is encapsulated well by Pekrun and Linnenbrink-Garcia, who begin their edited collection on emotions and education by stating that:
The classroom is an emotional place. The countless hours students spend attending class, completing projects, taking exams, and building social relationships translate into progress towards crucial life goals—holding a degree in education has never been of more personal, social, or financial significance than it is today. Accordingly, it is no wonder that educational settings abound with emotions. In these settings, emotions such as enjoyment of learning, curiosity, interest, hope, pride, anger, anxiety, shame, confusion, frustration, or boredom are frequent, pervasive, manifold, and often intense.Footnote 83
The most comprehensive discussion about the transformational role of emotions has arguably developed in relation to compulsory schooling. This is particularly in relation to the development, implementation and evaluation of social and emotional learning programmes. These are programmes which aim to assist their participants in acquiring and applying appropriate social and emotional competencies, including the ability to ‘understand and manage emotions’, ‘establish and maintain positive relationships’ and ‘make responsible decisions’.Footnote 84 The literature on such social and emotional learning programmes highlights both the links between their usage and academic achievement and also the necessity for social and emotional skills to be developed to equip students for adult life.Footnote 85 In relation to academic achievement, in a meta-analysis of 213 US school-based programmes, an average gain in academic achievement of 11% was noted.Footnote 86
In the UK, from 2003 onwards a government-backedFootnote 87 Social and Emotional Aspects of Learning Programme (known as ‘SEAL’) was introduced in the majority of primary and secondary schools.Footnote 88 This programme was based on the premise that ‘emotional and social processes are fundamentally inseparable from cognitive processes’.Footnote 89 Overall, the findings from evaluations of SEAL demonstrate a ‘very mixed picture’ in relation to its implementation.Footnote 90 In particular, a lack of consistency, influenced by staff attitudes and available time and resources were identified as key.Footnote 91 The importance of taking a ‘whole school’ approach is emphasised, together with use of the ‘SAFE’ principles (which require learning to be sequenced, active, focused and explicit).Footnote 92 In a review of SEAL, Bannerjee et al note:
It is striking, though, that our analyses revealed a particular association between ratings of the schools’ effectiveness in integrating SEAL with broader learning on the one hand, and achievement on the other.Footnote 93
This demonstrates that the potentially transformative role of emotions is mediated by practical factors, particularly a lack of commitment and resources. Nevertheless, it does not suggest that these hurdles are insurmountable. Indeed, the findings that social and emotional learning should be integrated into the wider school curriculum to be successful is one which again points to the importance of a more holistic approach, one supported by constructivist and humanist learning theories.
Given the level of interest, and the practical applications of emotions in education, to be found within compulsory schooling, it is perhaps unsurprising that there is also an ‘increasing interest’ in the role of emotions within higher education.Footnote 94 This is in contrast to the academy's previous portrayal of itself as an emotionless site of reason and rationality.Footnote 95 Some manifestations of this interest within higher education have been contentious, with Ecclestone arguing that a focus on therapeutic interventions, designed to boost students’ self-esteem, has actually disempowered students by labelling them in a manner which discourages personal autonomy and challenge.Footnote 96 This view appears to be based on the assumption that all social and emotional learning is focused on self-esteem, rather than acknowledging the broader role of emotions in a variety of aspects of learning. Indeed, Ecclestone herself acknowledges that ‘the impossibility of separating the pursuit of rational autonomy from the emotions (and sometimes passions) that inspire or maintain autonomy and that are often invested in presenting and defending it’.Footnote 97 It is therefore arguable that the key debate within higher education is now over how emotions should be theorised, not whether or not they should be a part of it. Beard et al suggest that:
The question is not whether emotion should be introduced into the curriculum; our argument is that the affective and embodied are already aspects of all pedagogical encounters but that in higher education, in particular, emotion is rarely acknowledged and is under- or mis-theorised.Footnote 98
Their research once again reinforces the importance of the affective (including emotions) in engaging students with learning in a meaningful way that can be transformative for individuals.Footnote 99
Within legal education, although tentative first steps may have been taken towards an acknowledgment of emotions,Footnote 100 the sparsity of literature and debate on its role overall arguably still reflects a tendency to deny the presence of emotions in the law curriculum and view them as a wholly pastoral consideration.Footnote 101 The nature of law as a discipline and the notion of ‘thinking like a lawyer’ can also lead to perceptions of legal education as requiring a peculiarly emotionless approach.Footnote 102 The weight of scientific evidence demonstrating the inseparable nature of cognition and emotions, the wider evidence indicating the impact of emotions on learning, together with the increasingly pluralistic nature of law and legal study all suggest that these arguments are becoming increasingly unsustainable. Indeed, this has been recognised by a number of commentators who call for the acknowledgment of a much wider range of skills and abilities to be recognised in legal education.Footnote 103 This would thus pave the way for an acknowledgment of the transformative role of emotions within the law school.
IV. Emotional competencies, legal skills and ideological influences
The focus of educational literature generally on the affective domain has largely been on the transformative power of emotions in relation to individual student learning. However, it also arguably has a broader transformative potential at a discipline-wide level when considering the increasing role played by skills and competencies within universities and law schools.
Skills have become an increasingly important part of university education in recent years.Footnote 104 As higher education generally has evolved from an elite to a mass system, where attending university now ‘merely marks a stage in life’, there has been a corresponding evolution in the manner and extent to which skills are incorporated within the formal curriculum.Footnote 105 The growth in neo-liberal ideology, which has had a profound impact on universities and those that are involved in them, has also contributed to the increasing prioritisation of skills development.Footnote 106 Its ‘vision of society as a marketplace’ has led to universities both being expected to meet the demands of students as consumers and also to provide graduates with a high level of skills to enable them to become productive workers in the new knowledge economy.Footnote 107 As far back as 1997, the National Committee of Inquiry into Higher Education (commonly known as ‘the Dearing Report’) was tasked in its terms of reference to take account of the fact that ‘learning should be increasingly responsive to employment needs and include the development of general skills, widely valued in employment’.Footnote 108 More recently, the introduction of the Teaching Excellence Framework has an explicit aim of increasing graduates’ ‘future productivity’ and delivering ‘better outcomes and values’ for not only students, but also ‘employers and the tax payers who underwrite the system’.Footnote 109
These influences have also arguably shaped the type of skills that are now required in higher education. In addition to the subject-specific and broader intellectual skills which are traditionally associated with liberal forms of higher education, there is an increasing emphasis on so-called ‘soft skills’.Footnote 110 In other words, the ‘generic skills and competencies required of graduates in the workplace’ ranging from interpersonal skills to competencies in time management and negotiation.Footnote 111 These are now increasingly prominent, although there have been a number of obstacles to their implementation at both institutional and individual level.Footnote 112
It appears that law schools in the UK have followed a general pattern of increased student numbers in relation to their undergraduate programmes.Footnote 113 There is also a considerable focus on skills to be found in the recent Quality Assurance Agency for Higher Education (‘QAA’) Law Benchmark, which emphasises the need for skills to be developed in conjunction with the knowledge-based aspects of the curriculum.Footnote 114 Of particular interest in relation to the role of emotions in the law school is the discussion on skills in the report of the Legal Education and Training Review (‘LETR’).Footnote 115 This states that ‘the affective and moral dimensions are critical to professional practice’ and includes ‘emotional intelligence’ as one of the core professional competencies relating to the affective dimension.Footnote 116 This is particularly highlighted in relation to client handling, where a summary of the qualitative data emphasises its importance:
At its broadest it was called common sense, or psychology, and described as an aspect of both professional ethics and commercial (or sometimes ‘social’) awareness. More specifically, it involved elements of being able to see things from the client's point of view, emotional intelligence, engendering trust, managing the client's expectations, the ability to deal with difficult or vulnerable people, and displaying courtesy.Footnote 117
The QAA's benchmarking statement also refers to the importance of students’ ‘self-management’ and ‘engagement with their own personal and professional development, and academic integrity’ which suggests a potential place for emotional intelligence, or some other form of emotional component (although the definition of self-management in the statement focuses largely on the idea of reflective learning).Footnote 118
The acknowledgment of such emotion-based skills and competencies again speaks to their importance, and even necessity, in developing both a legal education and a legal profession that are fit for purpose in the current ‘knowledge economy’.Footnote 119
Although there are many ways of incorporating emotional elements and competencies into legal skills without drawing specifically on emotional intelligence, it does appear that most work on emotional competency as a ‘soft skill’ draws on this concept. There are several different models of emotional intelligence and each is closely associated with a range of competencies.Footnote 120 Perhaps the best known model is that of Goleman, which originally included 25 different competencies, in five different clusters – self-awareness, self-regulation, motivation, empathy and social skills.Footnote 121 This has since evolved into three clusters – self-awareness, self-management (which includes motivation) and social awareness (which includes empathy and social skills).Footnote 122 The competencies are wide-ranging, from ‘organisational awareness’ to ‘trustworthiness’ and ‘conscientiousness’.Footnote 123
Emotional intelligence remains a contentious concept in scientific terms, largely because of its use of the term ‘intelligence’.Footnote 124 However, in higher education generally it has been argued that the competencies it focuses on are important soft skills for undergraduates to develop to support their studies and aid their subsequent employability.Footnote 125 In relation to legal education, in the US a number of commentators have argued for the explicit inclusion of emotional intelligence within the law degree.Footnote 126 In her ground-breaking 1999 article, Silver argues that ‘Legal education should prepare students for the emotional dimensions of lawyering. We fail our students if we fail to prepare them for the impact of their emotional lives, as well as those of their clients, on the practice of law’.Footnote 127 In the Australian context, James's research into graduates of the University of Newcastle Law School (in Australia) who were practising as lawyers demonstrated a ‘very relevant’ correlation between high levels of emotional intelligence and greater job satisfaction at work.Footnote 128 For those students not seeking to practise law, it is also clear that emotional skills and competencies have significant value. For example, in the UK context, Finch and Fafinski discuss the role of mooting in developing general employability skills which (with strong echoes of Goleman's model of emotional intelligence) include ‘an individual's ability to regulate their own behaviour in the workplace’ and ‘a person's ability to get along with other people’.Footnote 129
Despite this interest elsewhere, there has been little, if any, UK-based research on the role and levels of emotional intelligence amongst law students. This arguably stems from a lack of consensus over at which stage of legal education skills such as client handling should be taught, and which skills should be included in the undergraduate law degree.Footnote 130 For example, the LETR reports concerns raised by the Bar that a focus on ‘wishy washy’ skills would detract attention from the undergraduate law degree's focus on academic knowledge and skills.Footnote 131 In 1997 Harris and Jones, based on their survey of 76 UK law schools, reported that whilst there was agreement on the inclusion of certain skills, such as case analysis, there was ‘much less of a consensus’ in relation to vocational skills.Footnote 132 A subsequent survey in 2004 indicated a ‘diversity of practice’ amongst the 58 law schools who responded, but overall the results suggested that vocational skills were becoming more prominent, particularly within the new universities.Footnote 133
Arguably, the main reason that the role of vocational skills remains contentious is because it feeds into one of the enduring key debates in legal education, ie whether the law degree is liberal or vocational in purpose. A number of commentators have argued that the development of forms of transferable skills is compatible with the liberal view of law as a freestanding discipline.Footnote 134 In contrast, Bradney has argued, in relation to professional legal skills training that ‘training as an end is inimical to the pursuit and acquisition of knowledge’.Footnote 135 There are also concerns that such an emphasis on skills feeds into a neo-liberal narrative which could result in the law school becoming a ‘trade school’ focusing on ‘technocratic, skills-based courses’, thus threatening the plurality of approaches to law and legal education that have been developed.Footnote 136 In other words, learning in the law school becomes a product, rather than a process that has value in itself. Once again, this is contentious, as the impact of neo-liberalism on legal education has arguably been mixed, with much greater focus on performativity and accountability, but also greater freedom to engage with a wide range of approaches to law and legal education.Footnote 137
When navigating the impact of neo-liberalism in the law school, Rigg argues that:
The real difficulty lies in charting a course between the liberal ideal and the vocational reality which upholds the integrity of the subject matter and forecloses any potential ‘dumbing down’ criticism.Footnote 138
This may prove particularly difficult in relation to the undergraduate law degree, as there is evidence that law students take a significantly more instrumental approach to their studies than those in other disciplines.Footnote 139 However, this is a difficulty in terms of vocational or ‘soft skills’ as a whole, not something peculiar to emotional skills and competencies. Therefore, although the balance of the curriculum needs careful thought, there is no reason why emotions should be precluded from the course being charted and every reason to incorporate them as part of a valuable set of skills and competencies. This aligns well with a more holistic approach to legal education overall, one which acknowledges the relevance of emotions in relation to skills, but also in relation to learning, well-being and teaching.
It is arguable that one way to incorporate emotions into the law school curriculum, which bridges the gap between the vocational and the liberal, is through the use of clinical legal education. For example, Brayne et al suggest that its use goes beyond a narrow preparation for practice and facilitates students’ active learning in a much broader sense, including developing intellectual knowledge and critical and contextual understanding, presenting potentially dry information in a way which is accessible and engaging.Footnote 140 It has also generated a body of literature both in relation to both skills generally and the role of the affective domain, including emotions.Footnote 141 However, the extent to which clinical legal education in the UK has in practice become integrated into the wider law curriculum is questionable and it is not a part of all law schools’ offering.Footnote 142
V. The emotional well-being of law students
A further area in which the role of emotions is arguably inseparable from the workings of the law school is in relation to the emotional well-being of its students. There is considerable debate over the definition of ‘well-being’;Footnote 143 however, the key definitions given in recent literature do largely appear (implicitly or explicitly) to include emotions as a key component of it. For example, one of the early pioneers in the field of psychological well-being, Bradburn, refers to the importance of positive and negative affect in his description.Footnote 144 More recently, the Office for National Statistics has proposed a definition which includes the ‘individual's feelings of satisfaction with life, whether they feel their life is worthwhile and their positive and negative emotions’.Footnote 145 In a meta-analysis of literature on well-being, Eger and Maridal refer to the emotional state of ‘happiness’ as one of two components required for well-being (the other being ‘life satisfaction’).Footnote 146
Somewhat surprisingly, to date, there is very little information on law student well-being which specifically relates to legal education in England and Wales, although there is evidence of increasing levels of psychological distress amongst university students generally.Footnote 147 However, there are substantial bodies of work, relating specifically to legal education, in both the US and Australia which can be considered. This does lead to the important caveat that commensurability between jurisdictions should not be presumed given the more vocational nature of legal education within these countries.Footnote 148 However, conversely, it would be wrong to ignore the possible implications for the UK of such findings, whose significance is encapsulated well in Dresser's comment (in the US context) that:
Students entering law school expect to be intellectually challenged, but few realize that they are also beginning an emotionally hazardous journey.Footnote 149
In the US, a number of studies have taken place since the 1960s,Footnote 150 leading Shanfield and Benjamin to conclude as early as 1985 that ‘there is general agreement among legal educators that the stress of legal education is high’.Footnote 151 More recently, Sheldon and Krieger's 2004 study of subjective well-being followed a sample of first-year law students at Florida State University and also a cohort of first-year students at a second, unnamed US law school.Footnote 152 The overall conclusion was that the students involved appeared ‘quite happy and healthy at the beginning of their career’.Footnote 153 However, they then experienced ‘declining happiness and well-being’ during their first year at law school.Footnote 154 This included ‘large reductions in positive affect, life satisfaction, and overall SWB [subjective well-being], and large increases in negative affect, depression, and physical symptoms’.Footnote 155
In Australia, interest in law student well-being appears to have been ignited in part by the US studies referred to above and also due to the tragic suicide of Christian Jepson, a young lawyer and former law student, whose parents set up the Christian Jepson Memorial Foundation to raise awareness of mental health issues amongst law students and the legal profession.Footnote 156 The first detailed study into depression and psychological distress amongst both law students and the legal profession was conducted across 13 universities and nearly 2,000 members of the legal profession and concluded ‘that law students and members of the legal profession exhibit higher levels of psychological distress and depression than do community members of a similar age and sex’.Footnote 157 When discussing their findings, Kelk et al did note that this did not equate with law students being ‘severely dysfunctional’ due to the general levels of psychological distress and depression amongst Australian young people. However, it did show them to be more distressed than the norm.Footnote 158 This finding is supported in more recent studies which also indicated significant instances of depression amongst law students.Footnote 159
The studies referred to above indicate that it is the specific law school experience which contributes to psychological distress, rather than simply the pressures of being a university student generally.Footnote 160 Such studies have largely compared law students with either medical students or the general population.Footnote 161 A further Australian study took a different approach and included a range of law, non-law, undergraduate and post-graduate students at the University of Melbourne, spanning six disciplines in total.Footnote 162 The findings confirmed that law students did experience significant levels of psychological distress with around 30% in the ‘moderate to higher severity categories’ at a point in the semester where there were no significant assessment demands.Footnote 163 However, the study did not find that law students demonstrated higher levels of psychological distress than other students overall, with similar levels reported amongst undergraduate engineering and post-graduate science, nursing and psychology students.Footnote 164 Conversely, in their study of 188 undergraduate students from both the law and psychology schools of the University of Western Australia, Skread and Rogers found that ‘that law students experience higher levels of stress, anxiety and depression than university students in other disciplines, particularly psychology’.Footnote 165
Although the studies discussed above leave open to question the issue of how far it is the law school experience itself which is potentially damaging to student well-being, there is evidence of a number of factors relating to legal education which do contribute to issues in students’ emotional and wider psychological well-being. One factor is the academic pressures, teaching and workloads involved, with students seemingly taking an individualistic approach to competing for honours, status and sought-after professional opportunities (arguably, in part at least, a consequence of the neo-liberal focus on learning as a form of product).Footnote 166 Another is the apparent lack of autonomy, as students feel the need to comply with the demands and culture of the law school and, arguably, the requirement to ‘think like a lawyer’.Footnote 167
Both this focus on a particular form of legal analysis, and the adversarial model of legal education which often accompanies it, have been touched on above. Townes O'Brien et al, in the Australian context, suggest that the consequence of this is that students are discouraged from engaging with the messier, emotionally-involved aspects of the law, focusing instead on abstract problem-solving.Footnote 168 It has even been argued that the impact of ‘thinking like a lawyer’ is sufficiently embedded in law schools to generate a shift in law students’ thinking styles. Townes O'Brien et al comment that:
We believe there is sufficient evidence to support the hypothesis that a change towards, or a reinforcement of, rational thinking styles can occur in law school. In our experience, emphasizing the rational mode while neglecting the experiential mode of thinking is consonant with the approach to law that teachers often refer to as thinking like a lawyer. (emphasis supplied)Footnote 169
A rational way of thinking is ‘conscious and deliberative’, involving a focus on analysis, logic and reasoning, whereas an experiential way of thinking is founded on ‘effortless intuition’ with a holistic, emotionally-orientated focus.Footnote 170
Townes O-Brien et al suggest that higher levels of experiential thinking may enable students to more successfully encounter new motivations, beliefs and goals and navigate the competitive law school environment without succumbing to the pressures to conform that can generate cognitive dissonance and psychological distress.Footnote 171 Unfortunately, if emotions are not seen as important or relevant, in the competitive environment of the law school for students it will be perceived as a hindrance that is to be overcome, with a shift to more apparently rational ways of thinking.
Another, interrelated factor which has been found to impact on students’ emotional well-being is the role played by intrinsic and extrinsic motivation in regulating psychological health.Footnote 172 A number of commentators in both the US and Australia have identified a shift within law students away from intrinsic motivations, values and goals for study, such as personal growth and intellectual curiosity, and towards extrinsic motivations, values and goals, such as money and status.Footnote 173 How this correlates with the findings that law students are more instrumental than other students in their choice of degree is not yet clear.
The final factor often referred to as influencing law student well-being is a lack of social connectedness, an issue closely related to each of the other elements discussed, which appears to sometimes be identified as a cause of psychological distress and sometimes as a consequence of it.Footnote 174 There have been suggestions that law students are more focused on networking opportunities than other students, find it harder to form relationships within larger intakes and bigger class sizes and may isolate themselves from their usual support network.Footnote 175
Although the negative effects of legal education within other jurisdictions may be exacerbated by their more vocational approach to the law degree,Footnote 176 the above findings and the evidence of a general increase in mental health issues in the wider UK student population all suggest that the role of emotions within the law school must be re-examined. The very fact that in the UK there is the potential for a significant number of law students to experience a decline in well-being and an increase in psychological distress is in itself a compelling reason to argue that there is a need for emotional and other facets of well-being to be more widely acknowledged as an issue within legal education. However, in addition, these issues can create further, negative consequences, including inhibiting learning,Footnote 177 promoting disengagementFootnote 178 and causing long-term damage to those whose well-being is affected.Footnote 179
The impact of students’ emotional well-being on their engagement and learning means that it is impossible to dismiss this issue as a purely pastoral one, with Glesner arguing that ‘even if one sees our responsibility as solely to impart a body of knowledge, then one must necessarily address those factors within our control that impede that goal, including the psychological climate of the law school’.Footnote 180 There is evidence that people learn best when in a moderate state of arousal.Footnote 181 Although this means there may be some situations where a certain level of stress can enhance learning, it has been proven that high levels of stress and stress over a longer duration can inhibit the neural plasticity of the brain (which enables people to learn) and result in memory impairment.Footnote 182 In addition, it has been demonstrated that such stress results in students disengaging from their work as they begin to practise avoidance techniques (putting off or avoiding learning) and their lack of confidence in their ability to complete set tasks becomes a self-fulfilling prophecy, leading to a lack of effort and an increasingly negative perception of their legal studies.Footnote 183
The impacts discussed above mean that the high levels of stress identified in law students throughout their studies are likely to have a direct impact on their academic performance.Footnote 184 Iijima suggests that ‘because emotional state and academic performance are so closely related, and because law school contributes to emotional dysfunction, students may get caught in a downward spiral of emotional and academic problems’.Footnote 185 She argues that interventions focused solely on academic support will not be able to resolve this issue, because of the emotional aspects involved.Footnote 186 In addition, such psychological distress is likely to have more long term impacts.Footnote 187 For those students seeking to enter the legal profession, links have been made (in the US context) to burnout, mental disorders and substance abuse issues within the profession.Footnote 188 It has also been argued that students are leaving law school without the emotional skills required to succeed either in the legal profession or elsewhere.Footnote 189 A focus on extrinsic motivations, goals and values amongst law students has been linked with the reinforcement of negative habits (such as a lack of social contact)Footnote 190 and the suppression of true personalities, potentially even leading to the ‘disintegration or fragmentation of the whole person’.Footnote 191 By acknowledging and utilising emotions, law schools could foster a much greater awareness of such negative consequences and a far more supportive academic environment which transforms legal education into a tool to actively promote, rather than damaging, emotional well-being amongst students.
VI. Legal academics and emotions: teaching, research and administration
To fully explore the transformative potential of emotions, it is insufficient to consider only law student well-being, as emotions are also key to the work of legal academics – both in relation to their own work and well-being and also because of the emotional engagement which forms part of the student/lecturer interaction.Footnote 192 The work of legal academics can be categorised into three broad areas: teaching; administration; and research.Footnote 193 Each of these areas arguably involves emotions and also has the potential to impact on well-being and the culture of the law school.
In relation to teaching, despite a traditional disregard for the emotional dimension of this discipline, there is now a considerable body of work on compulsory education demonstrating that teaching is an innately emotional occupation.Footnote 194 Hargreaves summarises this well when he comments that:
Good teachers are not just well-oiled machines. They are emotional, passionate beings who connect with their students and fill their work and their classes with pleasure, creativity, challenge and joy.Footnote 195
A significant part of the role of emotions in teaching is in the way teachers can influence and manage the emotions of their students, either through specific social and emotional learning programmes or through their classroom management and the experience they provide for their students.Footnote 196 However, there is also increasing discussion of the role of teachers’ own emotions within their work and well-being. For example, in relation to compulsory schooling, Nias identifies three ways in which affect, including emotions, is ‘of fundamental importance in teaching and to teachers’.Footnote 197 First, because of the interrelation between emotions and cognition, secondly, because teachers’ feelings are engaged in their job and, thirdly, because of the way both emotions and cognition are intimately associated with social and cultural factors which shape teachers’ views of themselves which, in turn, influences the social and cultural context within which they work.Footnote 198 These elements have been echoed by other commentators. For example, Sutton and Wheatley suggest that emotions can impact on teachers’ cognitive functioning, with negative emotions causing them to become distracted from their educational goals.Footnote 199 Hargreaves argues that teaching is an ‘emotional practice’ which ‘activates, colors, and expresses teachers’ own feelings, and the actions in which those feelings are embedded’.Footnote 200
In relation to higher education, the more limited literature available also supports the importance of emotions within teaching.Footnote 201 For example, in their study of 97 higher education teachers in Finland, Postareff and Lindblom-Ylänne found that, in interviews regarding teaching issues, where the role of emotions was not explicitly raised as an issue, 92 of the teachers ‘described emotions in some way’ during their interviews.Footnote 202 There is also some evidence to suggest that there is a relationship between ‘high-quality teaching, or developed understandings of teaching, and positive emotions related to teaching’Footnote 203 as well as indications that students themselves perceive there as being an emotional element within examples of excellent teaching, for example, through the demonstration of passion and empathy.Footnote 204
Although there is very little literature specifically on emotions and teaching within law schools, it is arguable that much of the discussion above on compulsory and higher education equally applies within this setting. There are certainly small indications that this is the case; for example, in the Australian context, Bromberger argues for a form of emotionally-aware, nurturing law teaching which best facilitates student learningFootnote 205 and at James Cook University in Australia work has been done on integrating pastoral care into the curriculum.Footnote 206 In the US context, Juergens argues that legal academics have an important role to play in modelling the types of behaviour that will demonstrate to their students how to handle both ‘the emotional and rational aspects of lawyers’ work’.Footnote 207 In the UK context, Guth refers to the importance of mentoring law studentsFootnote 208 and Nicolson discusses the value of guided reflection on values and ethics in a law clinic setting.Footnote 209 Brooman and Darwent have also discussed the use of reflective diaries and academic self-awareness literature with first-year law students, suggesting these can provide them with insights into the psychological impacts of studying law and methods of identifying and handling the stresses involved.Footnote 210 It seems that, in harnessing the transformative potential of emotions within the law school, both teaching and learning are inextricably linked and vital.
Alongside teaching, research and administration form the nexus of academic life both generally and within the law school. It is arguable that the neo-liberalisation of higher education has led to research in particular become increasingly important in terms of how law schools measure academic performance and outputs, with Collier suggesting that ‘it is now beyond question that the performance and research productivity of all legal academic staff has become crucial to the status, financial health and, perhaps, the very future of the law school itself’.Footnote 211 As a result, there is an increasing acknowledgment that both the research and administration required in legal education have an emotional impact on legal academics, both in terms of the shifting focus of the law school as a whole and the pressures neo-liberalism engenders on individual legal academics. Thus institutional and wider market and policy-driven shifts in legal education have a direct emotional impact on the work of the legal academy. This clearly links into the themes of learning as a product and the emphasis on vocationalism and skills and competencies discussed above.
With regard to the impact of the shifting focus of the law school, it is arguable that a focus on measurable outputs has relegated pastoral care to an ancillary role, leading to it becoming devalued and ignored, often with an expectation that female legal academics will take on such roles.Footnote 212 In relation to the pressures on individual academics, Lynch argues (discussing higher education generally) that the neo-liberal focus on performance has led to ‘a type of Orwellian surveillance of one's everyday work by the university institution that is paralleled in one's person life with a reflexive surveillance of the self’.Footnote 213 In other words, people internalise the institutional and/or external focus on measurable, market driven outputs and measure themselves against that criterion in a way which leads to ‘feelings of personal inauthenticity’.Footnote 214 This can have significant emotional consequences for individual academics, who are subject to a range of emotions, including shame, aggression and anxiety.Footnote 215 As well as the negative emotions engendered by neo-liberalism, Rowland also refers to the stifling of more positive emotions, in particular the ‘intellectual love’ which an academic feels for their subject.Footnote 216 He suggests that an increased focus on accountability has undermined this love by forcing academics to focus on measurable outputs and performance as well as damaging the collegiality generated by a shared intellectual focus.Footnote 217
Grummell et al argue that the type of academic prized in the new conditions of higher education is one who is ‘care-less’.Footnote 218 In other words, one who has the freedom to attend conferences nationally and internationally and work whatever hours are required, without commitments to family and friends.Footnote 219 Lynch, in support of this view, argues that the origins of this ‘carelessness’ in fact stems from the notion of Cartesian dualism (as discussed above) which separates reason from emotions and prizes rationality in a way which fails to acknowledge the importance of ‘relationality’ within academics lives.Footnote 220 She suggests this notion previously formed an implicit part of liberal notions of higher education, but that under the dominant, neo-liberal ideology it is now ‘not only accepted, it is expected and morally endorsed’.Footnote 221 Such expectations at the level of both individual law schools, and within higher education institutions as a whole, may have extremely significant consequences for individual legal academics.
Given the emotional engagement and pressures involved in all aspects of academic life, it is perhaps unsurprising that, to date, literature on academic well-being has focused largely on ‘surviving’, rather than ‘thriving’.Footnote 222 Kinman and Wray's ‘Survey of stress and well-being among staff in higher education’, conducted for the University and College Union, found that nearly three quarters of the sample surveyed strongly agreed or agreed with the statement ‘I find my job stressful’ and over a half had high or very high general levels of stress.Footnote 223 Overall, Kinman and Wray concluded that:
On all but one of the Health and Safety Executive stressor categories, UCU members in higher education reported lower well-being than the average for those working in the target group industries (including education). The biggest ‘well-being gaps’ related to work demands, change management, management support and role clarity.Footnote 224
It is arguable that one of the causes of such high levels of stress amongst academics in higher education generally is the element of emotional labour involved in the work. Emotional labour is ‘the management of feeling to create a publically observable facial and bodily display’.Footnote 225 The originator of the concept, Hochschild, categorises this either as ‘surface acting’, where a person deliberately and knowingly will mislead others about what they are actually feeling and ‘deep acting’, where a person also ‘deceives oneself’ by altering their actual feelings.Footnote 226 Hochschild views both these forms of acting as having negative consequences in estranging people from their true feelings and relinquishing their sense of personal wholeness in a way which can lead to inauthenticity and burnout.Footnote 227
Although teaching and academic life arguably do not fit within Hochschild's original conception (which required the employer to exercise a degree of control over the employee's emotional activities), the idea has since been applied to both teaching and academic life.Footnote 228 Small scale studies in the UK,Footnote 229 the USFootnote 230 and ChinaFootnote 231 support the idea that academics have to engage in both ‘shallow’ and ‘deep’ acting. For example, Guth (discussing her first year as a law lecturer) states that ‘lecturing is undoubtedly a performance. I am not a natural performer’,Footnote 232 whilst Thomas, in his guide to law lecturing, suggests that such presenting in public ‘demands considerable entertainment skills’.Footnote 233 Although the impact of this form of emotional labour is unclear, its presence illustrates another facet of the role of emotions within undergraduate legal education.Footnote 234 Harnessing these emotions and exploring their impact could lead to significant transformation amongst legal academics, which could in turn be reflected within the wider law school culture and ethos and have a significant impact on the work and well-being of law students.
Conclusions, theoretical directions and practical applications
This paper has sought to demonstrate the wide variety of ways in which emotions have transformative potential within undergraduate legal education. Each of these ways arguably deserves further detailed research and discussion, but drawing them together demonstrates vividly the fact that emotions play an inescapable and vital role within legal education as a whole. Traditionally, law schools have attempted to disregard emotions, following the well-trodden legal paths of objectivity and rationality which the law so prizes in its philosophical traditions, practical applications and in the adjudication of disputes.Footnote 235 In doing so, both the doctrinal and liberal traditions fit comfortably into traditional scientific notions of emotions as a range of irrational, potentially dangerous impulses which must be suppressed and overruled with reason.Footnote 236 While the increasing growth of socio-legal studies and other approaches to law have developed it into a more pluralistic discipline for study, those fields which acknowledge and encompass emotions (in particular, ‘law and emotions’ scholarship and feminist legal studies) have arguably had relatively little influence on the law degree to date.Footnote 237
In Maharg's aptly named book, Transforming Legal Education, he argues that:
We need curricula that take account of the blurring of the domains of academic and everyday work and leisure, authority and purpose, market and individual choice, knowledge-in-itself and knowledge-for-others.Footnote 238
It is arguable that, in the post-LETR landscape, this need is more pressing than ever in a period of uncertainty and change for legal education. One of the ways in which to address this issue and develop legal education into a more cohesive and effective whole is to ensure that emotions are acknowledged and utilised, harnessing their transformative potential. The scientific evidence demonstrates that emotions are intertwined with (or possibly even a part of) cognition in a way which makes them inseparable from any cognitive activity.Footnote 239 Emotions therefore have a fundamental role to play in law student learning,Footnote 240 in employability and skills development,Footnote 241 in the emotional well-being of law studentsFootnote 242 and in relation to both the work and well-being of legal academics.Footnote 243 Suppressing and disregarding emotions cannot exclude them from these domains. Instead, such an approach is, at best, misguided and, at worst, harmful and damaging to those involved in legal education. In contrast, harnessing the transformative power of emotions would enable all those involved to reap the benefits of a more psychologically healthy and supportive environment where emotions are not merely relegated to a pastoral issue.
In terms of existing theoretical frameworks, there remains much work to be done in investigating the role of emotion within each facet of undergraduate legal education in more depth. In particular, it is necessary to consider how the ideological drivers within higher education and wider institutional, market and policy pressures at present impact on emotions potentially transformative role. Clegg and David argue that ‘the project of the “personal” and “personalisation” cannot be read as ideologically neutral’.Footnote 244 Some commentators have suggested that neo-liberalism has replicated the tradition of Cartesian dualism, separating emotions and reason and prizing the latter.Footnote 245 However, others argue that certain forms of emotional competency are viewed as valuable in neo-liberal ideology, for example, through ‘self-reflection and self-improvement’ activities.Footnote 246 The aim of these appears to be to utilise emotions in generating attachment and commitment to neo-liberal goals and also to enhance economic productivity by developing skills which add to the human capital available, rather than it being used or valued as a way to develop and nurture relationships, or in a manner which acknowledges emotions as more than irrational impulses which can be manipulated for political and economic means.Footnote 247
In relation to the learning process, Hey and Leathwood illustrate this problematic conceptualisation of emotions by referring to the focus on the need to support ‘non-traditional’ students.Footnote 248 Whilst this can be situated within the feminist tradition of education, which in turn draws on humanist and critical theories, there is also the danger that widening participation and retention initiatives and personal development planning may involve treating such students as a homogenous mass to be moulded to the needs of the neo-liberal market through a focus on employability.Footnote 249 This is a balance that needs to be acknowledged in relation to both learning and skills when considering what role emotions have within the law school, although the ideological complexity involved should not denigrate its powerful potential in both of these areas. Indeed, the fact that the skills-focus of the neo-liberal academy and the broader philosophical traditions which acknowledge and utilise emotions are aligned in promoting the importance of emotions in legal education illustrates how compelling the evidence is for their inclusion.
In terms of future directions for theoretical development, it is suggested that the feminist, critical and humanist traditions need to be drawn upon to develop a richer conception of emotions than the market-driven acknowledgment of neo-liberalism could alone.Footnote 250 Both at individual and collective levels, these traditions see emotion as integral to all facets of human existence and, as such, a vital part of legal education. They therefore offer the potential for a more holistic, ‘whole law school’ approach to emotions, which builds on the findings within compulsory schooling of the need for an integrated ‘whole school’ approach.Footnote 251
With regard to future practical directions, a range of suggestions have been put forward in relation to enhancing students’ emotional well-being and learning, particularly in the Australian context. A significant amount of these focus on the first year of law school – in particular, the transition that students face when starting their legal education. The key suggestion is that an orientation process should be put in place which explicitly includes discussion of emotional well-being and fosters an ethos which challenges the traditional ‘norms’ of law school. For example, Galloway et al discuss the need to ‘scaffold student capacity for dealing with their academic and personal development’ by creating a supportive social environment where trust and open dialogue are encouraged with lecturers working in partnership with their students.Footnote 252 This approach arguably requires both students and legal academics to have an understanding and appreciation of the role of emotion in order to facilitate such collaboration and co-operation. In the UK context, Brooman and Derwent's support for a longer transition phrase, which provides a broader range of opportunities for students to develop both social connections, but also a sense of self-efficacy, appears to support this approach of embedding notions of emotional well-being, and an understanding of emotions more generally, from the very start of the law school experience.Footnote 253
By introducing emotions as an integral component of the law school from day one, it would pave the way to embed approaches to teaching and learning which acknowledge and utilise emotion throughout the law degree. This could draw upon pedagogies developed, or situated, within the critical, feminist and humanist traditions, including the use of narratives and storytelling, the development of collaborative and experiential learning techniques and the inclusion of relational forms of teaching and scaffolding, as well as an emphasis on self-reflection.Footnote 254 Such pedagogies could be supplemented by the introduction of peer mentoring and buddy schemes and the possible development of programmes considering alternative approaches to law which acknowledge the importance of emotions, such as therapeutic jurisprudence.Footnote 255 The continuing expansion of clinical legal education also offers potential for explicit engagement with emotions, both in terms of the emotional competencies required and the emotional experiences involved.Footnote 256 This demonstrates that there are a wide range of initiatives which can be undertaken at individual, curricular and faculty levels to promote an appreciation of emotion and harness its transformative power.
There is clear evidence that emotions are inseparable from the processes and people involved in the law school. Disregarding and suppressing emotions can be damaging to both well-being and learning, and fails to utilise the growing importance of emotional competencies as an integral part of the higher education's skills agenda. Acknowledging and utilising the role of emotions is the first step towards developing a richer, more holistic form of undergraduate legal education which, despite having significant theoretical and practical challenges, also offers exciting and beneficial possibilities. Emotions cannot be ignored within the law school; it is up to legal academics to begin to listen, and respond, to what they can teach us.
