[This post also appears on Ed Lines, my blog about learning in law, and beyond.]
I’ve been thinking a bit about module design in criminal law. Decisions about how to design modules, activities, tasks or other components presuppose some groundwork on what we mean by ‘criminal law’ itself. This post is an attempt to think through some of that and as a consequence it focuses more on (at a fairly general level) content than learning. It also assumes that a programme is arranged, at a macro level, according to a fairly conventional modular structure, which is not something I would like to settle for – but it will suffice for the purposes of this post.
The Joint Statement of the Joint Academic Stage Board (JASB) in relation to Qualifying Law Degrees is, as I have observed in other posts (here and here), non-prescriptive; there is great latitude in how to construct programmes and components within programmes. Yet there is something of a canonical approach to criminal law. Kris Gledhill of the University of Auckland has done some interesting work comparing criminal law syllabuses in different common law jurisdictions, and identified significant similarities. There need not be anything ‘wrong’ with that, but I am going to stick my neck out a little and suggest that there is scope for more imagination in design. Typically, ‘criminal law’ majors on substantive doctrine – the elements of offences and defences – and overplays the role of serious offences – much like many textbooks (confession – including one of which I am a co-author). There is also a fairly standard (and largely unquestioned) narrative journey from the ‘general part’ (those principles which apply across offences) to the ‘special part’ (those matters which are offence-specific). This leads to the privileging of formalistic, positivist accounts of criminal law, which might be coherent, but can seem rather narrow. I suspect that some of the fascinating links between the content of substantive criminal law and its normative underpinnings can get missed – the staple Hart-Devlin debate notwithstanding. The focus on substance can also lead to its decoupling from procedure, which is both conceptually problematic and practically unsatisfying.
I don’t think there is a single right way to ‘do’ criminal law, but I’d like to think that there are a range of different building blocks from which the subject can be constructed. The narrative need not follow the general-special part journey, but could be organised around themes, some of which might have a distinctively ‘criminal’ flavour (eg, punishment), but others which might be of more general legal (or broader) resonance (eg, responsibility; power; accountability). There are a range of different potential ‘starting points’ – my colleague at York Matt Matravers makes a persuasive case that our understanding of the content of criminal law flows from our understandings of the proper purposes of punishment. This suggests a more prominent role for sentencing in ‘criminal law’ than might be typical. Interesting examples of practice include the integrated substantive law / procedure / evidence module at the University of Northumbria (which forms part of a broader pedagogy integrating what might inadequately be labelled ‘academic’ and ‘practitioner’ issues in a programme of study which leads simultaneously to a QLD and to exemption from the Legal Practice Course or Bar Professional Training Course), and Matthew Weait’s incorporation of trial transcript material into criminal law (see Integrating Socio-Legal Studies into the Law Curriculum, edited by Caroline Hunter).
Here is a diagram which I have used with students as a very basic map of a criminal law module at York Law School. The context is year 1 of an undergraduate problem-based learning curriculum. At that stage, the curriculum is mapped to a range of fairly high level themes, including (in no particular order) blame, rights, and institutions. Students work regularly with ‘messy’ scenarios, which will typically address legal issues from more than one module.
This is fairly rudimentary representation of some ‘sub-domains’ of criminal law, and it is no doubt problematic in that those sub-domains are not wholly distinct from each other. I have used it at an early stage to try to make clear that we are going to be thinking about a range of issues which will take us significantly beyond the ‘textbook’ account of criminal law. By being ruthless about conventional content, space is created to draw links using the overarching curricular themes. So for example, a theme relating to the relationships / conflicts among the interests of different participants in the criminal process can allow for a policy-informed discussion of the (relatively recent, and sometimes controversial) mainstreaming of the interests of victims and witnesses. That discussion could be grounded in for example, a scenario involving say, special measures and / or the admission of statements of fearful witnesses; and incorporate consideration of the substance of offences such as witness intimidation or perverting the course of justice. This approach may well involve ‘coverage’ (what does that mean anyway?) of less ‘criminal law’ in the conventional sense, but it may involve a richer conception of criminal law itself. You could ask how many offences you need to ‘know’ before you understand how offences ‘work’ in the conventional substantive / doctrinal sense. That knowledge and understanding is very important, but it is as much ‘knowing how’ to work with offences as it is ‘knowing that the elements of offence x are ‘a + b + c’‘. Better in my view for learners, both those minded to enter the legal professions, and those not so minded, to locate the substance in relation to, for example, the procedure, the policy, and the philosophy. You could of course argue that those contextual issues and connections are capable of being addressed elsewhere in the curriculum, in option modules for example. I would ask, first, whether we think these contextual issues and connections matter; and secondly, what the obstacles are to their being mainstreamed in ‘criminal law’ itself. I’ll answer the questions for myself here – first, ‘yes’, and secondly ‘only the limits of our imagination’.