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Extending the Theory-Practice Spiral: Action Research as a Mechanism for crossing the Academic/Professional Divide
by
Julian Webb*
Faculty of Law, University of the West of England, Bristol.< js-webb@uwe.ac.uk>Copyright © 1995 Julian Webb. First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
*My thanks to Susanne Lace and to the Journal's anonymous referees for their comments on an earlier draft of this paper.
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Summary
Current theory and practice in legal education is increasingly emphasising the need to develop in students the capacity for 'reflective practice' or 'humane professionalism'. This paper argues that the logic of humane professionalism has yet to be carried through to the later, continuing, stages of English legal education. It suggests that the law schools should play a significant part in this development by fostering an alternative, research-based, paradigm for continuing professional development. The vehicle proposed for this is 'action research', a hermeneutic and practice-based research method, which shares many of its epistemological assumptions with the experiential methods of clinical legal education. The paper concludes by analysing the main strengths and weaknesses of action research and offers a preliminary assessment of its capacity to contribute both to practitioners' self-knowledge of their practices and to academic understanding of the 'legal world'.
- Introduction
- The Nature of Continuing Professional Education in Law
- Legal Education, Legal Research and the 'Legal World'
- Legal Education, Epistemology and 'Praxis'
- Action Research, the Continuing Education of Lawyers and Beyond
- Conclusions
Introduction
The skills revolution of the late 80's and early 90's has led to a reopening of the debate about the relationship between academic and professional law and education. Proponents of the 'new pluralism' in legal education, in which law schools are being presented as "multi-purpose centres of learning" (Twining 1994, p 54; see also McAuslan 1989, pp 315-316) have stressed the need for closer integration of theory, practice and skills within the educative process.
How far such integration is taken remains a moot point, however. To date, there have been relatively few signs of a willingness to tinker with the post-Ormrod settlement and its division of the 'spoils of law' into their academic, vocational and continuing stages (see Ormrod Report 1971), so that most debate has taken place on the not unreasonable assumption that this framework remains (more or less) fixed. As a result, integration has tended to be translated into a renewed interest in clinical education (in its broadest sense, not just in terms of live client work) at the undergraduate phase. The exempting law degree, leading to the complete fusion of the academic and vocational stages, of course, provides the chief, if not only exception, to the rule. While this might arguably be seen as a logical outcome of such integrationist movements (see Jones 1993) the unwillingness of the Department for Education to fund further developments of this kind has put a brake on such experiments for the present.
Few commentators to date, however, have considered two further implications of integration: the need to address the role of the law schools in developing advanced and specialist continuing education (though cf Twining 1994, ch 3), and a second need, which, it is submitted, follows from the first; that is, to consider the ways in which such developments could - or should - relate to activities elsewhere in the law school. This need it is submitted is a logical concomitant of the calls for 'humane professionalism' (Arthurs Report 1984, p 47) - an education in substantive law, legal skills and human values and ethics - as the guiding principle of undergraduate education (cf ACLEC 1994, para 2.1). Indeed, as the Arthurs Report (ibid pp 49-50) in fact notes, having to deal with both the intellectual and the practical creates a demanding dialectic that is a valuable preparation for the world of practice.
In this paper I attempt to address these issues in an exploratory fashion via a three phase analysis. In the first section that follows I consider briefly the present nature and status of continuing professional education. In the second I argue for both a pragmatic and epistemological basis for using research to bridge the academic/practical divide. In the third section I make a particular case for the development of action research methodologies as just such a vehicle for legal research. In the concluding section, I will also seek to broaden this argument beyond the boundaries of professional education, to argue that such methodologies also provide a powerful reflexive tool for informing the development of academic understanding of the legal world.
Forward to Bibliography.
Back to Contents.
The Nature of Continuing Professional Education in Law
Within continuing education, professional education (or continuing professional development - CPD - as it is now commonly termed) occupies a distinctive niche. It has been defined, somewhat idealistically, as
"The maintenance and enhancement of the knowledge, expertise and competence of professionals throughout their careers according to a plan formulated with regard to the needs of the professional, the employer, the profession and society." (Madden & Mitchell 1993, p 12)
Conventionally CPD is seen as the final phase in multi-layered system. This is typified by Houle (1980), who formulated a three-tier model of professional education comprising (1) the academic stage (2) the initial professional stage (involving both institutional and 'apprenticeship' training) and (3) post-qualification continuing education. As is apparent, it is a model that has become relatively standard in Common Law systems of legal education (see eg Ormrod Report para 100; Pearce Report 1987). So what is the nature of the CPD experience engendered by that system?
The relative lack of extensive research makes it difficult to generalise here. Madden & Mitchell's research on CPD policy in the UK stresses the extent to which much CPD has often been 'knowledge' rather than 'process' oriented, focusing on updating substantive knowledge, rather than on enhancing generic or professional skills, or on developing the learning strategies consistent with the heuristic and reflective aspects of professional practice, highlighted in current epistemological debates (eg Elliott 1991; Webb 1994). While there is evidence that the position is changing rapidly across a wide range of professional contexts (see Madden & Mitchell 1993; Allaker & Shapland 1994), the evidence to date suggests that, in law, providers have been relatively slow to develop CPD beyond relatively narrow developmental and updating functions (eg Greenebaum 1991, pp 22-3). Professionals, similarly, have been slow to recognise a need for more skills-based CPD (note the 'know what' approach to CPD identified by the Benson Report 1979, para 39.89 and, to a lesser extent by the Marre Committee 1988, paras 16.1-16.2; cf also findings by Nelson 1993, pp 110-112; Roper 1993, pp 100- 101).
Whatever the historical realities of the situation, what is certainly apparent is that the practice of continuing education is likely to change. This is for a number of reasons. First, perceptions of 'good practice' are clearly becoming more sophisticated, with a growing emphasis on interpersonal and managerial competencies (Law Society 1993) as well as on greater (theoretical) knowledge-based specialisation (Law Society 1995). Second, it is inevitable that the profession will become increasingly comfortable with skills and competence-based training as more trainees who have completed the new vocational courses enter practice. Third, there is evidence of greater sharing of experience between professional bodies, particularly in respect of matters such as mandatory CPD, as a result of both market and external regulatory pressures (Allaker & Shapland 1994, pp 73-74). Lastly, it follows that CPD developments in law are likely to become increasingly influenced by work in other professional spheres that stresses the extent to which continuing education needs to be seen (by educators and participants alike) as part of an individual commitment to 'lifelong learning' (cf Mackie 1990, p 138).
The concept of lifelong learning has had currency for many years but it has only recently "expanded from the sphere of liberal adult education to the mainstream debate" (Bridge & Salt 1992, p 36). It implies a rejection of many of the established boundaries between education and training and between formal and informal learning environments (Ball 1989; NIACE 1990). To this extent, CPD is, along with other areas of further and higher education, also becoming subject to what one commentator has appropriately termed a post-Fordist discourse in education and training in which:
The transmission of learning, of bolting on a particular canon or skills to people as they progress down the production line of education and training, is in the process of being replaced by individual learning programmes tied to the needs of particular individuals, mixing elements of formal, non-formal and informal learning. Associated with these changes are accreditation of prior learning, credit accumulation and transfer and modularization of the curriculum. The standard products of education and training are being replaced by a wider range of goods for particular segments of the market in which the learner is consumer with consumer choice.(Edwards 1993, p 181)
The nature and processes of such lifelong (professional) learning are contested but, as a minimum, it can be said that the notion implies:
- an ongoing process of intentional rather than spontaneous or unplanned learning (Knapper & Cropley 1985);
- a switch from pedagogic methods of knowledge acquisition to learning that is increasingly self-directed (Brookfield 1986);
- a shift in emphasis away from the delivery of theoretical or 'propositional' knowledge to a fostering of practical and procedural 'know-how' and the development of problem-setting and problem-solving capacities (Schön 1983; Cervero 1988);
- learning that equips individuals with the knowledge, skills and attitudes to cope with change in their occupational and social sphere (Knapper & Cropley);
- learning that is acquired with the intention that the knowledge/skill is to be used immediately (this is a key distinction, following Piaget, between pedagogy and andragogy) (Bloch 1982).
Where does this changing environment leave the universities? To date there is only limited information on the role of the universities in providing CPD to the profession.
It is clearly the case that, outside the confines of CPE and LPC, there is no agreed necessary connection between the teaching of law in the universities and its practice. Indeed, the latest Wilson survey indicates that practice is increasingly being seen by the old universities as an activity that interferes with the scholarly work of staff, with the result that it has been banned or restricted in a number of institutions (Wilson 1993, p 161). Whether this is also indicative of an ambivalence to professional education and training within such law schools is open to debate. Most university institutions engage in CPD delivery - even those whose mission is defined largely in research terms (eg Institute of Advanced Legal Studies 1994). Nevertheless, in some quarters occupationalism - never mind vocationalism - clearly remains a thing to be avoided (Bradney 1995). Anecdotally, it seems most institutions allow staff to deliver CPD on a broadly voluntary basis. It is not, unlike research or mainstream teaching, generally seen as a necessary part of the job. The result is, one suspects, that for the majority of academic lawyers traditional CPD activities - particularly the short course or professional conference - are marginal, even though such activities can be, as Partington argues, "founded in substantial research and scholarship" (Partington 1988 p 385). Within my own institution, for example, less than one-fifth of the Faculty are regularly engaged in such CPD. I doubt that this is atypical among larger departments.
However, there is also evidence of a clear movement among university institutions to transform the CPD experience into a more academic process, through the medium of postgraduate education. This trend emerges through two particular lines of development. First, there is the provision of essentially 'traditional' taught Postgraduate Diploma or LLM programmes using modes of delivery that enable participation by full- time practitioners (eg, distance learning or weekend teaching). Second, there is the development of discrete programmes at Master's level which are designed specifically for practitioners. Institutions are now being actively supported by the professional bodies in these endeavours. The Law Society, in particular, has constructed its new scheme of specialist practice diplomas around universities' capacity to accredit CPD within the framework of the Credit Accumulation and Transfer Scheme. Guidelines thus suggest that providers should seek to validate practice diplomas at Master's level with a tariff of about 30 M level credits (Law Society 1995). The potential to give credit to CPD diplomates seeking entry to postgraduate courses, and, in the longer term, to construct purely CPD-based awards is obvious. Such developments are likely to be attractive to both professionals and the universities. They clearly offer enhanced status to professionals, at a time when there is fierce competition for employment opportunities. They also offer some financial incentives to the university sector, because they exploit these institutions' sole advantage over private CPD providers: namely their monopoly position in validating awards that carry academic standing.
Although such developments might be welcomed in (some) educational terms, on the basis that they are at least more coherent and more developmental than some of the 'quick-fix' updating that passes for CPD at present, there is no guarantee that the LLM routes as presently envisaged will bring us any closer to a structured as opposed to incidental or opportunistic integration of the academic and the professional. Nor does it necessarily equip professionals to be effective lifelong learners, with the adaptability and reflectivity that their social functions require. (It is perhaps significant in this context that the Law Society Standards for practice diplomas have, so far, sought to identify competency and outcomes almost exclusively in terms of propositional knowledge.)
It is in this context that I wish to argue for the development, in legal education terms, of a new research paradigm that has the potential to foster valuable forms of integration between the academic and the professional. The case for this is based on two arguments; the one essentially pragmatic; the other epistemological.
Forward to Bibliography.
Back to Contents.
Legal Education, Legal Research and the 'Legal World'
The first connection I wish to make between legal education and research involves the recognition of two principal, but interrelated points of argument.
First, I suggest that, in research terms, the pluralism of legal education has been at one and the same time its chief strength and greatest weakness. Pluralism has enabled 'academic' law to develop in eclectic and evolutionary ways. While the "traditional strength" (Mackie 1990, p 139) of legal education and scholarship has been the black- letter law, strong counter-traditions of contextual, clinical and critical scholarship have arisen. Each of these has served in its own way to highlight the social, economic, political and even human dimensions of law. However, the absence of a coherent strategy for legal education for much of our past - perhaps even for our present - and the relative parochialism of the legal academy has inevitably led to a sometimes debilitating fragmentation of research activity and methods, with damaging consequences for the quality of English legal scholarship (see Wilson, G 1987). The focus by both teachers (see Macfarlane et al 1987) and students (Sherr & Webb 1989) on professional training motivations, even though these may not be paramount, has arguably added to that process of debilitation by restricting much of the academic culture of the law schools to a search for practical relevance (cf Arthurs Report 1984, p 55), but without a real awareness of the true practical context.
Second, I wish to suggest that both the academy and the profession have been slow to accept that research also underpins the professional enterprise. In making this assertion I broadly align myself with the position adopted by the Arthurs Report:
"A profession that lacks a scientific (sic) base cannot properly serve either its clientele or an increasingly complex society, cannot maintain a credible claim to its privileges and powers, cannot attract to itself the best minds or employ those minds to best effect. Nor, for specific historical and cultural reasons can such a scientific base for law flourish at too great a distance from the project of law as has been understood by practising lawyers. After all, in large part it is their formal literature, institutions, culture and behaviour that provide a major focus of scientific study." (Arthurs Report 1984, pp 137-138)
This tendency is a reflection of the rationalist tradition to define 'science' purely in terms of what happens in the academy. Practice within this model of knowledge is merely the application of that scientific knowledge within an applied field (Mackie 1990, pp 140- 141). The focus of the academy has largely stayed on the construction and elucidation of legal knowledge, rather than on addressing its application, other than in a narrowly formalist sense of that term. The resulting parochialism of the academy has created a tendency (with the exception of a relatively small corpus of, mostly, socio-legal work) to disregard the profession, and law as practised, as a significant site of research interest and activity - as opposed to a mere target of policy-oriented research output.
The scientific model also represents a failure to recognise the phenomenological (as opposed to purely formalistic) complexity of law on a truly breathtaking scale. It disregards the extent to which the 'legal world' involves "a series of experiential relationships which defy the assumption and devices of the positivism of the behavioural science model (Salter 1994, p 301). Without this phenomenological dimension I suggest we have little genuine capacity to "construct a sociology of knowledge, of practice, and of knowledge as practice" (Murphy 1987, p 403). Moreover, as Freidson notes:
"The deficiency is critical because the very justification for the market protection that associations, schools and credential systems provide lies in the actual work that professionals do." (Freidson 1989, p 423)
When taken together, these trends offer, at the very least, a pragmatic need to take practice seriously in research terms. However, I would go further (as does Murphy) and suggest that there is also an epistemic justification.
Forward to Bibliography.
Back to Contents.
Legal Education, Epistemology and 'Praxis'
Let us begin this phase of the argument by considering the nature of law as a field of inquiry. According to Hirst (1974), it is possible to distinguish between theoretical and practical fields of knowledge. To simplify his distinction, a theoretical field is concerned with constructing knowledge of the world, while a practical field is concerned with acting on the world and changing it. In law, as presently constituted, the legal academy wants a foot in both camps, and yet has generally created no clear way of negotiating the gap between the two (though Llewellyn perhaps comes closest to achieving this, by seeking to construct a holistic model of "legal theory" out of legal philosophy, empirical, social scientific, study and study of the skills/craft aspects of lawyering - see Twining, 1973). Teubner has summed the situation up thus:
"[L]egal discourse is caught in an 'epistemic trap'. The simultaneous dependence on and independence from other social discourses is the reason why modern law is permanently oscillating between positions of cognitive autonomy and heteronomy." (Teubner 1989, p 730)
This pattern is readily discernible in English legal scholarship. Adopting a frequently implicit, sometimes crude, objectivist epistemology (Macfarlane 1988; 1992, pp 298-301) black-letter law often pays scant regard to either grand theory or practice, though in its choice of tools it remains closer to the analytical framework of practice than to the more reflective methodologies of the social and human sciences. On the other hand, the more interdisciplinary approaches of contextualism and of Critical Legal Studies offer a sometimes bewildering display of ideas drawn from a variety of (anti-)foundational disciplines. The theory is there, often in an eclectic form. But, as Twining (1994, p 173) and others have recognised, these approaches add up to the construction more of a variety of methods rather than a foundational theory of law - or an alternative thereto that is capable of escaping a frustrating deconstructivism. Added to this, as noted, there has been little attempt within these movements to assimilate practical knowledge into the legal canon. These, in essence, are core problems for legal epistemology.
My own response to these issues is essentially anti-foundational, and grounded in the notion of law as a site of 'praxis'. In developing these ideas I have drawn in large part on the works of Robin Usher (Usher 1989; Usher & Bryant 1987) and de Castell & Freeman (1978) from the field of education, though the notion of praxis is not unknown to legal scholarship (Rees 1976).
Praxis is a hermeneutic notion indicative of a movement to bring together theory and practice in a dialectical engagement that leads to what Usher calls "informed and committed" action (Usher 1989, p 83). Epistemologically, praxis is built on a model of law as a "socio-practical field" (de Castell & Freeman, 1978, p 15). This involves a number of assumptions about the nature of the legal enterprise. It recognises that law is socially and historically contingent. Our theories of law are paradigm-dependent in the Kuhnian sense that they are a product of a particular way of seeing the world and interacting with it. Praxis develops this and adopts an argument that is essentially Gadamer's, that we are both constituted by and engaged in interpretive understanding of our world (see Usher & Bryant, 1987).
Praxis also recognises that the relationship between theory and practice is reflexive; this itself has a number of implications. First it is an acceptance of the point made by Rubinstein in the late 1950's that:
"Knowledge is originally directly interwoven with practical activity; only then it detaches itself and forms itself into a special cognitive 'activity'. It is not correct to oppose action and knowledge and treat them as external to each other." (cited in Marková 1982, p 175)
Second, it implies that what Schön (1983, pp 21-30) terms technical-rational knowledge (ie "specialised, firmly bounded, scientific and standardised" knowledge - ibid p 23) is actually transformed by its application to a particular situation (Usher 1989, p 76; Marková 1982, pp 58-59). In law, this can be illustrated by the young practitioner's growing awareness of the practical limits of her technical knowledge: clients may be less concerned to know whether certain conduct will be a breach of contract per se (the point at which technical-rational knowledge usually stops), but whether the likely costs of breach can be either mitigated or justified in commercial terms. Our practitioner's understanding of the 'universal' - the meaning and application of the law concerning breach of contract is changed by her experience of the particular. She will also have come a step nearer to recognising that we "cannot be spared the task of deliberation and decision by any learned or mastered technique." (Gadamer 1981, p 92)
The implication of this is that our understanding of a phenomenon is less than complete if we fail to recognise the reciprocity between theory and practice. Should we not, therefore, re-evaluate technical-rational claims to theory which fail to recognise its other dimensions: the heuristic and personal knowledge that also underpin practical experience (Webb 1994)?
Lastly, praxis rejects the idea that legal problems are intrinsic only to the field. Rather, it places an emphasis on the 'situatedness' of law and the practical use of legal knowledge to solve problems of human need (Radin & Michelman 1991; cf de Castell & Freeman 1978, p 17). The result is an orientation that Usher terms both pragmatic (in the sense of problem-focused) and critical (Usher 1989, p 91).
In legal education the logic of praxis has worked through into clinical and experiential methods of learning which have attempted to mediate the academic/practical divide by reference to notions of reflective practice (Jones 1993; Webb 1994). The law clinic, however, is a highly specialised environment, which, in the UK, is restricted largely to a relatively small number of academic programmes of study. Vocational programmes such as the LPC, despite a significant amount of experiential work, do not offer the same opportunities for reflection and for 'knowing-in-action' (Schön 1983, 1987) and cannot claim, systematically, to develop the attributes of reflective practice. The practical difficulty then is in constructing experiential methods outside the clinical environment which enable the processes of reflective practice to continue. This is a particular, though by no means unique, issue for CPD where, as we have seen, the experiential and reflective is seldom emphasised to any degree.
This paper will seek to conclude that the obvious answer is to use research as the vehicle for developing praxis. To explore issues of practice reflectively and phenomenologically requires an opportunity for deep analysis and understanding that will not be forthcoming from technical-rational theory absorbed from a half-day workshop or seminar. However, this step requires a conceptual shift in our understanding of the research process, away from the foundationalist, scientific, paradigm which presently dominates, towards a more hermeneutic and participatory model of 'action research'.
Forward to Bibliography.
Back to Contents.
The Nature of Action Research
The notion of action research taps a number of different streams within the social and human sciences. It has developed particularly in the contexts of adult education, management learning and humanistic psychology.
In its origins, action research was first conceived of in foundationalist terms (see Lewin 1947). Nevertheless, since the late 1970's it has been possible to identify the development of an alternative formulation which identifies action research with forms of hermeneutic enquiry which seek to develop understanding beyond the academic/practical divide. There are a number of more or less common strands in this literature.
First, action research is normally participatory or collaborative in nature (Whyte 1991; Reason 1988b, p 1-2); action research involves an open and direct dialogue with other actors and participants in the research. These processes may take a number of forms: a co-operative inquiry group involving a number of researcher- participants; a dialogic encounter between researcher and participant, or between two researcher-participants; indeed in its most extreme form dialogic research may even incorporate the internalised reflections of a single researcher-participant. The method thus involves a rejection of the traditional division between researcher and researched. To this extent it has clear links with other participatory research methods within the ethnographic and ethnomethodological tradition, links which are heightened by its rejection of the hypothetico-deductive model of inquiry in favour of grounded theory approaches (Strauss & Corbin 1990). However it takes the insider perspective to its logical conclusion - by requiring the direct and active participation of insiders in the research.
Second, it follows that it is experientially-based research (Heron 1971; Ebbutt 1985). As with all forms of experiential learning, the starting point is some event or performance which itself becomes the "primary data in a process of discussion and analysis" (Spiegelman 1988, p 257). Action research is either research by practitioners, or at least researchers collaborating with practitioners, engaged in a systematic attempt to understand and change practice by their own actions and reflection upon those actions. Such research follows a spiralling pattern of inquiry - a "self-critical movement between experience and reflection which goes through several cycles as ideas, practice and experience are systematically honed and refined." (Reason 1988a, p 6). To this extent, action research is, in method and conception, an extension of reflective practice.
Third, it also follows that action research rejects the standard conception of research as 'objective' study. While many law teachers may still feel uncomfortable with this idea, it is perhaps a less heretical stance than it once was, given both the growing recognition of the importance of 'difference' for epistemology (see eg Lennon & Whitford 1994) and the wider acceptance of the 'value-ladenness' of 'scientific' reasoning.
Action research is said to adopt a perspective that is both dialectical and "objectively" or "critically" subjective (Reason & Rowan 1981, p 13; Reason 1988a, p 11-12). It recognises that a "situation comes to be understood through the attempt to change it, and changes through the attempt to understand it" (Schön 1983, p 132). Drawing on Hegelian thinking, action research does not suppress the individuality of experience, but neither does it ignore or overlook it. While individual experience is the starting point of the hermeneutic spiral, this is then subject to reflection which focuses on "the outcomes of action, the action itself and the intuitive knowing implicit in the action" (Schön 1983, p 56) and to processes of abstraction in which the researcher is conscious of the situatedness of herself and of the research, and seeks to relate the research pragmatically rather than foundationally to the wider 'reality'. The emphasis then is on validity as a matter of "practical epistemology" (Reason 1988b, p 38) rather than abstract theory. Ultimately, there is "no non-arbitrary basis for giving sole priority to either the particular or the most universal facets [of the legal world]" (Salter 1994, p 301).
It also follows that the results of action research cannot be pigeon-holed as either 'pure' research or practice, but must instead be regarded as 'action-grounded theory' (Susman and Evered 1978): the result of acting on theory (in its wide sense) and theorising action.
In practical terms the methods whereby this dialectic is achieved are interesting, and relatively unconventional. Schön (1987, p 26-31), for example, characterises the first phase as an internalised "reflective conversation" with the problem being researched. It is a process in which the researcher-practitioner must engage experientially with the problem. She cannot stand apart precisely because she is in and of the situation which she is seeking to research and thence to change. Morgan (1983, p 374) also uses the idea of a "reflective conversation" to describe the externalised second phase, in which the researcher's reflection is made public. As Usher (1989, p 86) points out, what is important therefore in such research is openness to critical dialogue as a mechanism for evaluation.
Finally, action research is widely seen as developmental and future- oriented (Susman & Evered 1978; Maxwell 1984; Reason 1988a). Action research is ultimately concerned with outcomes as well as process. This follows from its experiential and reflexive base. Action research methods thus lend themselves to studies of the development of professional experience, or 'culture' (Marshall & McLean 1988) and the enhancement of future problem-solving.
Forward to Bibliography.
Back to Contents.
Action Research, the Continuing Education of Lawyers and Beyond
Having explored, albeit briefly, the nature of action research, it is necessary to consider its applicability to the continuing education of lawyers.
As I have sought to show, given present concerns over the development of professional practice, continuing education provides the obvious stage in the system of education and training at which to introduce action research methodologies. At the same time, one must accept that action research offers both a significant opportunity and a significant departure for CPD.
In terms of the opportunities, it offers a model that potentially brings us closer to the ideals of lifelong professional learning and of humane professionalism. It offers professionals the opportunity for highly individualised learning and provides a method which has the capacity to enhance participants' abilities to undertake continuing and critical assessment of their professional behaviour and responsibility, their assumptions and values. Action research thus has the capacity to address aspects of both the skills and deeper cognitive (humane) dimensions of the legal process, and to enhance the intellectual qualities of the continuing education process. The process of doing research, for example, forces the researcher to confront the contingent and shifting nature of problem-setting and problem-solving.
The humanistic dimension of action research also offers substantial opportunities for empowerment and self-realisation by professionals (Cross 1981). Action research obliges the researcher-participant to take cognisance of the self as an interacting party, unprotected by the safety net of researcher objectivity. Participants engaged in action research will frequently be obliged to confront important questions about the nature of the research subjects, and their own relation to them; their ethics (research and professional) and their purposes. This in turn may encourage practitioners to become more habitually conscious of and reflective about the social, cultural and political conditions in which practice takes place. The chance to confront these issues within the relative safety of the research environment may be especially valuable in the earlier stages of the practitioner's career when that person may still be seeking a resolution of conflicts between professional and personal identity (cf the arguments advanced for clinical legal education by Barnhizer 1979, p 69).
On the other hand, the radical difference of action research from most learning experiences lawyers are familiar with creates some formidable challenges. It is perhaps worth noting in this context that action research is being taught as part of a compulsory programme of workshops on legal and social research methods delivered in the first four weeks of an LLM in Advanced Legal Practice at the University of the West of England. This is a purely research-based programme for LPC diplomates and those practitioners who qualify for entry by virtue of their prior experiential learning. While it is too early in the programme's development to draw any substantive conclusions about research methodologies, the action research workshops delivered this year undoubtedly generated both the greatest degree of interest and of scepticism. Experience to date suggests a number of problematic themes are likely to be recurrent.
Some of these are essentially practical problems, though this is not to underplay their significance. The professional and research ethic constraints associated with researching one's own clients are probably the chief example; these (quite properly) will tend to foreclose an otherwise potentially fruitful avenue for action research into lawyer- client relations. Other practical problems arise, for example, in constructing opportunities for collaborative inquiry (particularly if some participants are to be drawn from outside the learning environment provided by the CPD programme), and in translating dialogue into action (eg, where participants may not have the seniority or status to create an environment for institutional change). Such problems need to be considered if empowerment is not to become disillusionment. Furthermore, since conventional social scientific research methods are rarely taught on undergraduate law programmes, any commitment to empirically research-based CPD requires a commitment to research training and some recognition of the particular needs of part-time research students of this kind. Our experience of the LLM in Advanced Legal Practice is certainly that practitioners approach research with a mix of enthusiasm, trepidation and little experience or detailed awareness of the practicalities, but that does not necessarily make them any different from other new graduate students. And they at least have some experience in which to ground their research, unlike many of their conventional 'academic' counterparts. One of the benefits of exploring action research methodology is its capacity to help demystify the notion of 'the researcher'. Action research stresses that research is not just a task carried out by a special body of people; it emphasises that, subject to certain conditions, it is something practitioners can do in the context of their day-to-day practice.
Other constraints, however, may be even more fundamental. These include, notably, difficulties in enabling participants to recognise and use their own situatedness, when such perspectives are alien to them, and the problem of ensuring that the grounded approach does not get distorted into a purely descriptive method which ultimately indicates an absence of methodology altogether. There is a risk of action research becoming translated into crude management consultancy, and the current shortage of legal academics with the relevant research skills (cf ESRC 1994, p 41) to support action research undoubtedly increases those risks.
This analysis so far stops at the threats and opportunities action research offers to practising professionals. Action research would also create spin-offs for legal education and for the academic study of the profession and its use of law.
In terms of legal education, action research could prove useful in further developing our understanding of professional learning, by disclosing what Roper has termed the "hidden forms of continuing education...which arise in the day to day working life of [professionals]" (Roper 1993, p 124). But it need not stop there. The history of legal education shows that, integration or not, changes at one stage of the process will often have an impact on the rest of the system. The recent history of once marginal alternative 'paradigms' such as clinical education, or socio-legal studies, are illustrative of that fact. As Mackie notes:
The special characteristics of [CPD]...make it an important site for educational experimentation and evaluation, and one where experience could force a reappraisal of undergraduate teaching methods (Mackie 1990, p 138)
At the very least we might begin to see legal academics and students beginning to appraise the educative process itself from the perspectives of action research.
The data generated by a substantive body of CPD-based - and hence practitioner- generated research might also help the academy to reappraise the nature of legal practice. For example, new qualitative data could be obtained on the manner in which lawyers are socialised into their legal world (cf Erlanger & Klegon 1978); on the "modes of cultural understanding" (Salter 1994, p 293) that exist in and define practice environments; on the ways in which 'law' is experienced, subjectively, by actors in its processes (ibid at pp 295-296), and on the ways in which particular professional goals are formulated and selected (as part of what Salter, again, terms the "complex of functional relations" - p 299). This represents a prime means of bringing CPD closer to the mainstream of academic inquiry.
I am also conscious that I have perhaps given the impression of assuming that this new canon is generated almost solely by practitioners. That is not my intention. The nature of action research obviously demands practitioner participation, but the corollary of this is not academic non-participation, and academics have participated substantially in the generation of action research in other fields of inquiry. Such participation may involve either direct involvement in fieldwork or a somewhat modified form of research supervision. Even though the actual processes of participation differ, there is no reason why academics might not initiate and pursue action research, outside the supervisory context, much as they would engage in other forms of qualitative research. Within a supervisory role, the primary function of the supervisor is to generate critical reflection on both methodological issues and the substantive issues of inquiry. In dialogic research this role may become virtually participatory as you engage directly in reflective conversation with the supervisee in a manner that seeks to turn
"common-sense perceptions, observations and attitudes through the use of critical theory and practice, into problematic situations requiring analysis and debate;...the development of alternative principles and approaches around which transformative theories and practices may be built." (Beyer, 1984, p 38)
However generated, such research would certainly provide richer descriptions of practice than much of what we currently possess. In its own right, or by a process of meta-analysis (ie the analysis of multiple descriptions of related phenomena), it contains the promise of an alternative, dialogic, jurisprudence building on a variety of narrative and experiential understandings of the legal process. In this way I would also hope that, just as action research might foster change in the practical world through the empowerment of practitioner-researchers, and thence, one hopes their clients, it might also create new capacities for understanding within those academics who engage with them in the process of research. Although empowerment is an increasingly common buzzword in clinical contexts, we tend to forget the wider potentialities created by its essentially reflexive nature.
Forward to Bibliography.
Back to Contents.
Conclusions
This paper has, perhaps inevitably given the contingency of the subject-matter, delivered a relatively abstract and hypothetical case for a tentative 'new paradigm' in continuing education.
This case is built initially on the call for a more holistic approach to legal education which is based on the need to construct a systematic education for 'humane professionalism', without the fragmentation implicit in the present three-tier model, which may undermine rather than support the individual's capacity for lifelong learning. It is suggested that this shift can be achieved in part by translating the emphasis on 'reflective practice' (already apparent in clinical models of undergraduate education) into its research equivalent - the concept of 'action research'. It is this which constitutes the extension of the theory-practice spiral to sites outside the undergraduate curriculum. Action research, it is suggested, needs to be built, like reflective practice, on an epistemology that operates dialectically and recognises law as a socio-practical rather than theoretical domain. The domain has been labelled 'praxis' for the purposes of this analysis, and I have sought to use it to indicate an escape route from the 'epistemic trap' created by law's contradictory claims to theoretical dependency and autonomy.
From these assumptions it is argued that action research might initially serve as a new paradigm for developments in continuing professional education, not least because that is the stage of legal education which is least integrated with the rest; most under- theorised (in reality if not in the literature), and the one, formally, that should be most amenable to the development of practitioner-centred research. This is not to suggest that action research is only of value in the CPD context. But experience suggests that new paradigms need first to become rooted in one part of the system before they can successfully transplant elsewhere. Given the practitioner-focus of action research, CPD seems the sensible place to try.
Despite a number of problems inherent in the action research model, it is seen as an ideal tool for integration because of its epistemological rejection of the academic/practical divide. I have sought to show also that action research is an epistemologically sophisticated technique. By its holistic approach to knowledge construction, its acceptance of the situatedness of researchers and the hermeneutic nature of research, it offers us phenomenologically detailed insights into the legal world. Insights that are only available to us because we have found the means
"to know them in the context of our participation in the whole system, not as the isolated dependent and independent variables of experimental science." (Reason 1988a, p 11)
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