United Kingdom Journals

Benchmarking: A Pedagogically Valuable Process? An Alternative View

Anthony Bradney

Faculty of Law,
University of Leicester

<ney@le.ac.uk>

Copyright © 1999 Anthony Bradney.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

This article argues that benchmarking is part of a long-standing attempt to redirect the work of the university away from its traditional task. It further argues that although an attempt has been made to preserve the plurality that characterises present-day university legal education in writing the benchmark standard there is a fundamental tension underlying the concept of a benchmark standard when it is applied to a pluralistic university system. Finally it argues that particular elements of the draft benchmark standard for law are problematic.

Contents

Introduction

Benchmarking and Pluralism

Quality Control and University Law Schools

The Law Benchmarking Standards

Benchmarking and Enterprise

Conclusion

Bibliography

Introduction

John Bell's article on benchmarking in this issue of the Web Journal is a valuable contribution to the literature concerned with the development of university legal education, first because of his own personal role in developing notions of graduateness in relation to law and more latterly in co-ordinating the piloting of the draft law benchmark, and secondly because of the way in which he is able to situate his argument for the pedagogical value of benchmarking in the context of the literature on higher education. (Bell, 1999; Bell and Johnstone, nd) To date comparatively little has been written about benchmarking and issues germane to it. There has been relatively little discussion about the implications of benchmarking. The academic community has as yet not reached any observable consensus about the value or otherwise of the process. In this article I will seek to argue an alternative point of view to the generally positive attitude to benchmarking put forward by Bell; a point of view which sees considerable dangers for university legal education in accepting the idea of benchmarking.

The concept of benchmarking broadly raises two questions for university law schools. First, is benchmarking a desirable thing either in pedagogic or in political terms? Will it be good for our teaching or is it a necessary response to political pressures which have fallen on universities? Secondly, if benchmarking is either desirable or unavoidable, are the particular standards which are currently being suggested appropriate for the work that university law schools want to do? Neither of these questions can be answered in abstract. In both instances one's response depends on one's views about the nature of the university law school in general and its role in relation to students in particular. In previous articles and essays I have argued that university law schools should provide a liberal education in a context that acknowledges that the university's primary role is the pursuit of knowledge. (For example, Bradney, forthcoming; Bradney, 1998 and Bradney, 1996) This position is contestable. Some commentators would wholly reject it. (For example, Savage and Watt, 1996, 52-53) However, I will not repeat or seek to develop the arguments for the position I have taken here, simply noting that this perspective will inform this article. Two things that are of consequence for arguments in this article follow from this theoretical stance. First, those who work in universities are in a unique position to judge best what should be done in universities (Kennedy, 1997, 3; Russell, 1993, 3-5). Those outside the university lack the knowledge to make decisions about how universities should work in the same sense that those who are not doctors lack the knowledge to make decisions about the efficacy of different forms of clinical treatment. Secondly, a liberal education addresses students as human beings not simply or even primarily as potential employees (Arnold, 1960, 82).

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Benchmarking and Pluralism

Now, as in the past, there is relatively little consensus within higher education about any of the central issues which relate to the nature of the university or the university's responsibilities towards its students. Within university legal education this lack of consensus is reflected in wide-ranging divisions between those who favour vocational as against academic work, skills rather than knowledge, doctrinal rather than socio-legal and so on and so forth. These divisions are far from trivial and the positions held on all sides are often reflective of deeply-held beliefs. They produce very different conceptions of what counts as a good university law school and a good university law graduate.

Some writers who take part in the debates about legal education would contend that their views are in a simple sense right; that their arguments, and only their arguments, are objectively true and that they are grounded upon the only possible accurate and pertinent observations of society. Other writers would argue for a plurality of different ways of looking at the nature of a university law school, putting forward their own view about legal education as one amongst many that are acceptable. Whatever view they hold, however, almost all commentators would accept that individual academics and individual law schools have the right to hold to their own view of university legal education and, within very broad parameters, to let that determine the work that the law school and the academic does. Almost everybody would accept that, whilst debate about the nature of a university legal education is desirable and indeed necessary, there is no room within the academy for those who would seek to curtail that debate by enforcing their particular view of university legal education by dictat. Those who dissent from this position have attracted fierce criticism. Carrington, in an article on ethics and academia, wrote that "the nihilist who must profess that legal principle does not matter has an ethical duty to depart the law school, perhaps to seek a place elsewhere in the academy" (Carrington, 1984, 227). Carrington's observation was taken to mean that some or all of those who worked from the perspective of Critical Legal Studies should be removed from university law schools and it caused considerable controversy. In a series of letters written in reply most writers asserted the academic's right to teach and research in a law school from whatever perspective they found most worthwhile and Carrington in response to this criticism resiled, at least in part, from the position that he had espoused (Martin, 1985). A plurality of views about the nature of university legal education results in "substantial complexity" when looking at the range of educational practices in United Kingdom law schools (Harris and Jones, 1997, 97). Herein lies the first problem for any form of benchmarking. How can benchmarking have any kind of critical bite yet permit the present plurality and encourage a future mix of educational practices which, at present, we cannot even begin to imagine? How can benchmarking avoid being dictat?

Benchmarking brings precisely the same problem for law schools that the Joint Announcement on Qualifying Law Degrees, issued by the Law Society and Bar Council, occasions. For benchmarking to do any work at all it must constrain what academics do. It must, in some way, say these things are permitted or these things are to be done. It must, even if only by implication, say these things may not be done. Whatever its detailed content it must, by its nature, set limits. The various versions of the Joint Announcement that have been served up to law schools over the years have for the most part set limits by prescribing the subjects and the contents of subjects that must be found in the law curriculum. The draft benchmarking standards for law do not, in the main, prescribe content; although there is some very generalised knowledge prescription in the law benchmark the "learning outcomes" that form the largest part of the standard are best seen as skills or competencies that all law graduates will have to possess.

The notion of using learning outcomes as a way of ensuring quality in learning and teaching is not unproblematic (Allan, 1996; Ecclestone, 1999). Nonetheless, in choosing to prescribe learning outcomes rather than knowledge content those drafting the standards have given individual law schools and individual academics greater discretion in framing the law curriculum than does the Joint Announcement. By prescribing content the Joint Announcement sets very clear limits to academic freedom (Stevens, 1994, 87). Academics are told what they must teach in their lectures, seminars and tutorials. The draft benchmarking statement, however, simply says what the student must become. There will be many alternative ways to ensure that a student has attained each of the outcomes found in the draft statement. Nevertheless, outcomes do set limits. They must be attained and the law school, or at least the university which the law school is part of, must provide something in order to allow that outcome to be attained. And, given the width of views about what is to be done in university legal education, some of the outcomes will, inevitably, be outcomes that some academics think should not be attained or will be outcomes in which the law school or the university should not interest itself. Equally importantly, in setting the outcomes the statement specifies how part of the student's time is to be taken up. The student is thereby less free to devote themselves to other work the individual academic or law school sees as being more important than the statement's outcomes. For these reasons if plurality in law schools is to be defended then the less that is said in a benchmarking standard the better. The less that is said, the fewer the outcomes specified, the less the time that has to be devoted to ensuring that benchmarking outcomes are attained. The less that is said the more time there is to devote to other matters not mentioned in the benchmark. But the less that is said in the standard the less benchmarking can be said to act as a new guarantor of quality. It is only to the degree that it prescribes the behaviour of law schools that the benchmarking statement can be said to be a guarantor of quality. There is thus an inherent contradiction in the needs of the academic legal community and the purpose of benchmarking. The tension that results for the academic community can be reduced or increased depending on the particular content of the standard but it can never be entirely removed.

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Quality Control and University Law Schools

It would be idle to pretend that there are not suspicions in some quarters about the rigour of current academic standards in the universities. These suspicions are neither particular to law schools nor particular to the university system in the United Kingdom. Writing about universities in the United States Donald Kennedy, the former President of Stanford University, notes "[t]he perception that universities are no longer loved" (Kennedy, 1997, 13). The precise nature of the suspicions is unclear. In some instances the complaint seems to be that academic standards are not as high as they used to be (that graduates are not as good as they used to be); in other cases the complaint seems to be that universities set standards which are not appropriate in producing the kind of graduate the complainant would like to see (graduates cannot do the things they should be able to do). The first kind of complaint comes from a variety of quarters including the universities themselves (Wright, 1996, 74-76). The second kind of complaint typically comes from business (HEQC, 1997, 6). Both kinds of complaints lead on to the proposition that universities need to think of new ways of demonstrating their control over the quality of their students' education.

As Bell correctly observes in his article "there have been a number of spectacular failures of the higher education sector to maintain standards properly, the most recent being Thames Valley University" (Bell, 1999). Even more pertinently some of these failures have been failures in university law schools. One English university law school, for example, was found to be "unsatisfactory" after its first TQA assessment (HEFCE, 1993). These failures might be seen as providing evidence that substantiates at least one of the kind of complaints noted above. Individual examples of failure are not sufficient, however, to justify the proposition that new systems of quality control such as benchmarking should be set up. University law schools already have various forms of internal and external quality control. If the fact that there are individual examples of failure despite these systems necessarily leads to the conclusion that new systems must be set up benchmarking is a system of quality control which is destined to have a very short shelf-life. Given the number of university law schools which exist there will always be occasional individual examples of failure. Benchmarking will not prevent such failures. The present mechanisms of quality control can only be said to have failed or to be insufficient if it is possible to show they have not prevented widespread or systematic failure in the quality of learning and teaching in university law schools. It is not at all obvious that objective evidence of such failure in university law schools exists. Indeed, such evidence as there is suggests rather the reverse. Although it would be wrong to forget the widespread criticism of the English TQA process at the time that English university law schools were examined and the doubts thus raised about the quality of the evidence which the process produced, it is interesting to note that the overall disciplinary report for law painted a picture of a system of university law schools where the quality of learning and teaching was in general high (Bradney, 1996; Brownsword, 1994; Brownsword, 1996, 10-12; HEFCE 1994).

It could be argued that focusing attention on the realities of educational practice in university law schools is to miss the central issue in both the benchmarking debate and the broader arguments about university "failures". What is important, on this argument, is not what is being done in law schools but, rather, perceptions about what is being done. The problem is not that there have been failures in university law schools but that people think that there have been or will be such failures. Benchmarking is then seen as something that will allay these fears; it is politically not pedagogically necessary. Such an argument probably both misunderstands and understates the fears about academic standards found outside the universities. To argue that there is a crisis in the relationship between the universities and the outside world is now a commonplace (Barnett, 1990: Kennedy, 1997, chp 1; Scott, 1990). The roots of this crisis are to be found in a range of phenomena including philosophical doubts about the nature of knowledge, economic questions about the financing of a system of mass higher education, political questions about the relationship between the universities and other sites of power within society and sociological questions about the way in which universities contribute to the maintenance and development of culture. It relates not just to matters internal to the universities but also to a wider debate about the relationship between public services and the state (Henkel, 1997, 142). It is a world-wide not a United Kingdom phenomenon (Taylor, 1987). Concern about academic standards are symptoms of the crisis not part of its cause. Put simply the crisis raises the question why trust the universities? Benchmarking first legitimates the question by responding to it and then fails to answer it because it is a form of quality control internal to the academic world. If the question is, why trust academics, a successful answer cannot be, because we, the academics, have set up mechanisms to check on ourselves.

Notwithstanding the current sense of crisis in the universities it is important to remember that universities have constantly been under threat. As Minogue remarks, universities have usually been set up because of a "fitful enthusiasm for education" on the part of individuals or the state (Minogue, 1973, 11). Their creation does not necessarily betoken any sustained understanding of their purpose and throughout their history universities have constantly had to restate their role. A proper political response to present perceptions of failure would be to point to the reality of the success of universities in general and law schools in particular. To be successful that must be done as part of a process of restating the role and function of the university and the role and function of undergraduate and postgraduate education. A failure to do this has been one of the strategic mistakes made by the universities in their response to government (Ryan, 1998, 19).

One further argument can be made for benchmarking. Mass participation in higher education and the larger number of graduates who are going into employment means that the university sector is now very different from the élite system which was traditional to the United Kingdom. Those sending their children to university and those employing graduates are now drawn, it is said, from a much wider section of society than has been the case in the past. They lack personal knowledge of universities (Randall, 1999, 1). Benchmarking is one way of providing information for a new audience about what it means to be a law graduate. The problem with this contention is two-fold. First, its factual basis in relation to university law schools is somewhat suspect. Law schools have certainly seen a dramatic increase in numbers of students. Numbers of full-time and sandwich undergraduates have risen steadily over the last ten years and increased by fifty per cent between 1993 and 1996 (Harris and Jones, 1997, 267). Nevertheless mass higher education does not necessarily mean mass participation in higher education. The Law Society's cohort study of law students did not show any significant change in the class composition of present-day law students as compared with those in the past (Halpern, 1994, 21-22). Law schools seem to be growing mainly by taking larger numbers from the traditional socio-economic groups who have sent their children to university. It is possible that changes to the class composition of the student body in law schools is still feeding through. However, it seems that it is more likely to be the case that a combination of the high examination grades needed to gain admission to a law school and the nature of secondary education in the United Kingdom will continue to restrict the social mix of the law student body. A similar argument obtains in the case of those who employ law graduates. Whilst it is clear that many law graduates do not find employment in the legal professions it is less clear that the employment they do find is in areas of work unused to employing graduates. Detailed statistics on this matter do not exist. Law students are plainly taking employment as, for example, accountants or civil servants but it is less clear that they are taking employment in any large numbers what were previously non-graduate areas. Even if the factual contention that lies behind this argument for benchmarking were accepted the value of benchmarking in doing this job of educating employers and parents would still be open to question. Because benchmarking for law must cover such a diverse range of institutions the work it can do by way of education is very limited. If ignorance about what law schools are like or what law graduates can do is an issue then the answer must lie in the admissions prospectuses that law schools produce and perhaps in a wider educational mission for the professional societies of legal scholars not in benchmarking.

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The Law Benchmarking Standards

Debating the detailed content of the draft law benchmarking standard is difficult because much turns on how those details are interpreted. The benchmarking statement itself is short and, even when read in the light of the various guidance notes and illustrative examples, there is a great deal of room for differing interpretations. This can be seen as being advantageous, allowing individual law schools and individual legal scholars to give the standard the reading they think appropriate in the light of their beliefs about the nature of legal education. Equally, this uncertainty in interpretation can be seen as being disadvantageous. With benchmarking come assessors from the QAA who will use the standard as part of their evaluation of the work of law schools. With benchmarking comes an external world of parents, employers, media and politicians who will be invited to assess the performance of law schools in the light of the standard. If assessors or the external world interpret the standard differently to the academic community or members of the academic community whose interpretation will prevail?

A concrete example will illustrate the problems that may be caused by at least some interpretations of the draft benchmark standard. Under the provisions of the draft statement law graduates would have to be able "to provide arguable conclusions for concrete problems". Quite what a "concrete problem" is is open to question. The correct interpretation to be given to Keats' "Ode on a Grecian Urn" is a concrete problem as is the question of why women have failed to become judges in the House of Lords. Arguable conclusions can be given for both questions. However, in the context of traditional law teaching and given the illustrative though not exhaustive examples in the notes of guidance on this point, the draft standard in talking about concrete problems seems to be referring to a student's ability to answer so-called "problem questions". Is it the unarguable case that law graduates should be able to deal with problem questions? In an article on criminal law teaching Alldridge identifies the fact that the standard examination question is of the problem type as being part of the weakness inherent in the traditional criminal law syllabus and argues that there are enough other courses to teach the black-letter skills tested by such questions, these skills being, in his view, in any event over-rated (Alldridge, 1990, 38 and 57). Lacey in a discussion of Criminal Law teaching notes the "pedagogically embarrassing" fact that

"I have to tell them [her Criminal Law students] to trot out standard actus reus/mens rea/ lack of defence analysis when doing exam problems, even though we spend quite a lot of time in classes analysing this very critically and thinking about the space which the apparently analytically tight framework leaves for manipulation by those with power of one kind or another". (Lacey, 1992, 86)

Following on from either argument one might reach the conclusion that it was never appropriate to use problem questions of the traditional type. (One could also reach the conclusion that it was rarely desirable to use problem questions; a position which some interpretations of the benchmark standard would find acceptable.) Moreover, one might find oneself with like-minded colleagues with all the law school's courses being taught from this perspective and one's students would never learn to answer problem questions. One might not therefore regard them as being impoverished. Rather, one might be happy to know that they have not wasted their time with intellectual fantasy. (Again a different conclusion could be reached. One could believe problem questions to have little or no value but see them as part of the furniture which law students should know about even if the particular item has long proved to be redundant. On this basis once again one might not believe in the merits of problem questions but still teach students how to solve them much as in the way one teaches dead languages.) None of this presupposes not believing in the existence of doctrine or believing in its existence but believing that its study is not necessary for the study of law though either position might be held and would not allow the use of problem questions. All that is necessary for the benchmark standard to be problematic is for an individual or a law school to hold to the belief that problem questions are by their nature sterile and misleading; a belief held by a wide range and significant number of legal scholars subscribing to a socio-legal or CLS perspective. As was argued above any benchmark must constrict plurality. Here is a particular example of such constriction; the constriction being greater or smaller depending on the interpretation given to the standard.

A different kind of problem with the benchmark standard arises when one turns to section 7 of the draft standard, "Other key skills". This section contains five demands. The law graduates must be numerate, able to word-process, use the web and e-mail, use electronic information retrieval systems and contribute effectively as a participant in the work of a group. Some of these skills are arguably no more than modern forms of matters which were always necessary for the human flourishing which a liberal education aims to achieve. Thus using the web and electronic information retrieval systems are analogous to the traditional need for a student to be literate. Having these skills is, or will quickly, become a pre-existing condition to acquiring a liberal education because without them one will not have access to the information which one needs to both absorb and reflect upon. Some of the other skills demanded are more problematic.

Some academics will find both the demand that a law graduate be numerate and that they be able to work in groups a little puzzling. Again the issue is partly a question of interpretation. What, for example, is the level of numeracy required in order to be a law graduate? The notes of guidance to the benchmark standards suggest that courses traditionally taught from a doctrinal perspective such as succession and trusts contain sufficient material to show that the law graduate is numerate. If this is so then the level of numeracy required is very low perhaps reflecting the nature of university law schools. It is some time since possessing a GCSE in mathematics has been a requirement for entry into all United Kingdom law schools. Nevertheless the question, is it in fact necessary to be numerate at all to have the understanding of law that is appropriate to justify graduating, remains.

Different approaches to the study of law demand different levels of numeracy. Any approach which involves the student in using quantitative socio-legal material, for example, will demand a comparatively sophisticated level of numeracy from the student. In courses taught from such a stance numerical material will permeate the curriculum to such an extent that even the poorest student will have to make some attempt to come to grips with it if they are to achieve an honours standard. It is less clear that a doctrinal approach to the study of law involves a student in necessarily having even the rather low level of numeracy implied by the benchmark standards. Doctrinal students are exposed to numerical material. However, the exposure is occasional. The benchmark standard is written at the level of the third class student. One of the features of the third class student is the fact that they cannot do everything that is asked of them. Being unable to comprehend the occasional numerical material in a doctrinal course might be precisely the mark of the third class student in law. They would of course be a poor student. All third class students have demonstrated no more than that they are, in university terms, poor students. Nonetheless they have also demonstrated that they have a graduate understanding of law.

The suggestion that a law graduate should necessarily be numerate causes some surprise. The suggestion that they should be able to contribute effectively to the work of a team is even more problematic. Why does an understanding of law or the fact that one is a graduate necessarily imply that one can work effectively in a team? Liberal education seeks to produce graduates who are people "of humane culture...equipped to be intelligent and responsible about the problems of contemporary civilization" (Leavis, 1943a, 29-20). It focuses on the individual and their responsibility for their lives. Even so Robinson Crusoe is a trope not a character. We live in a social world. A graduate must therefore be able to interact in ways that they can justify with other individuals because one cannot live entirely apart from others. The manner of the interaction is, however, left to the individual. Individuals must make their own value choices. The only thing demanded of them is an awareness that they make those choices and an acknowledgement of their responsibility for those choices. "A successful student will be able to engage in effective discussion or debate with others..." (Dearing, 1997a, 115) but only if they choose to do so. A misanthrope who minimises human contact is not thereby debarred from being a graduate.

As in the forgoing it could once again be argued that the problem lies in a question of the interpretation of the benchmarking draft. Any student who has successfully acquired a liberal education will be capable of working effectively in a group. If there is "intelligence", "scrupulous sensitiveness of response to delicate organizations of feeling, sensation and imagery" allied to an "appreciative habituation to the subtleties of language in its most charged and complex uses" (Leavis, 1943b, 38) (this being Leavis' description of a liberal education in literary studies, a description which could also be applied to a liberal education in law) then the student will have skills of analysis, empathy and communication that can be brought to the service of a group. What they will also have is an awareness that they need to think about whether or not they wish to work effectively with any particular group and that they are personally responsible for the consequences of the work of the group. On this analysis all that needs to be added to the benchmark draft in order to clarify it is a rider that graduates should be able "to work in groups as a participant who contributes effectively to the group's task (if they believe it correct to do so)". Such an argument however, whilst rigorously rational, would be disingenuous.

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Benchmarking and Enterprise

Arguments for including teamwork in the university curriculum pre-date the idea of benchmarking. The arguments put teamwork in a particular context. The literature on teamworking begins with the proposition that

"[t]he ability of students to work with colleagues to 'deliver the goods' by a set date is given little prominence [in universities], despite being a key element in the world of work." (Bailey, 1990, 69)

Thus the argument is not an argument about the graduate's ability to engage in teamwork per se but, rather, an argument about a particular kind of team which is doing a particular kind of task; it is an argument about teamwork in employment. In an important sense the type of teamwork proposed is the antithesis of that which lies at the core of a liberal education. These arguments for teamworking hold that "[t]he central importance of the 'team' in employment is that it becomes the source of authority for its own activities" (Coldstream, 1994, 164-165). The team not the individual matters. Whereas liberal education concerns itself with the individual's responsibility for and authority over their own lives this kind of teamwork involves the individual submerging themselves into the group. Corporate flourishing not human flourishing is the essence of the exercise.

The intellectual roots for most arguments for the inclusion of teamwork in the university curriculum lie in responses to the demand by both industry and central government for graduates to be made more employable. In 1987 the then Conservative administration said that the mission of higher education institutions ought to include the "further development of skills of communication and numeracy and the fostering of positive attitudes to enterprise and work generally" (Higher Education, 1987, 18). One result of this White Paper was the Enterprise in Higher Education initiative announced later in 1987. This invited higher education institutions to bid for finance to fund projects which would "develop competencies and aptitudes relevant to enterprise" for all their students (Wright, 1992, 205). Teamwork was one of these competencies (Wright, 1992, 212).

Even taken on its own terms the argument for the changes mooted to make university students more employable is not compelling. Notwithstanding government statements about the need for universities to change their practices so as to make students more employable it is not at all clear that this was a view taken by all employers. In a survey completed for the Dearing Committee, thirty-eight percent of employers stated that graduates had better applied skills such as teamworking and problem solving than did non-graduates (Dearing, 1997b, 61). Moreover employers are not a sui generis group and do not have one set of demands. Ryan has argued that the political rhetoric that surrounded attempts to make universities provide students who were more employable saw employment purely in terms of employment in the manufacturing industries despite the fact that these industries are of less and less consequence in the British economy (Ryan, 1998). Traditional forms of higher education, Ryan has argued, made students ideally suitable in terms of temperament and skills for employment in the new industries which have arisen as the Age of Machinery has given way to the Age of Information. Thus the focus on making students more employable in fact served to make them less employable in the more vibrant sectors of the economy.

Whether the enterprise approach is compatible with liberal education has been a matter of dispute. Some authors have denied any close link between enterprise and

"'entrepeneurship', or...a not-too-veiled injunction [on the part of the Enterprise in Higher Education initiative] to transform their [university] courses into something little more than direct preparations for predetermined slots in the labour market" (Wright, 1992, 206)

thus opening up the possibility of a rapprochement between liberal education and enterprise learning. Others have argued that employment and economic life is so important that its centrality to education can be justified even in a liberal education (Bridges, 1992). More common, however, has been suspicion of or even an outright rejection of the enterprise notion on the grounds that the values inherent in academic life and a liberal education and the values in the proposals to make graduates more employable are, for the reasons above, wholly incompatible (Bailey, 1992; Tasker and Packham, 1994).

Given the intellectual and political provenance of the suggestion that graduates should have teamworking skills any claim by law schools that their graduates do in fact have those skills will be read by those outside the university in a very particular manner. The question will not be, do law graduates have the necessary skills of analysis, empathy and communication so that they can work with others but, rather, are law graduates able to accept and even be enthusiastic about the specific kind of team ethos to be found in employment and in particular in private sector employment? Teamworking in this context involves not just a set of skills or competencies that the graduate needs; it also involves inculcating certain values into the student. Employers, whether they be in industry or the professions, are not concerned about whether or not graduates are able to work on a team. They are concerned about whether or not graduates can work and want to work on their team. By including teamwork within the benchmark standard law schools will be perceived to have legitimised the question. Whether they will be able to answer it affirmatively is open to question. A similar argument can be made with respect to the inclusion of numeracy in the benchmark standard. The arguments for its inclusion in the portfolio of the graduate have a similar provenance to teamwork and it needs to be interpreted in the same manner. In the academy the knowledge of proportions gained through doctrinal work in succession may be seen as numeracy. To some in the outside world graduate-level numeracy means an elementary knowledge of calculus (Coldstream, 1994, 164).

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Conclusion

The arguments above suggest that there are more pedagogic dangers than opportunities in the benchmarking process and that, even if the process is seen as a political manoeuvre, it is as likely to be a failure as a success. To accept benchmarking is to accept the probability that law schools will add continual battles about the content and interpretation of the benchmark to continual battles about the content and interpretation of the Joint Announcement.

The damage caused by benchmarking will impact as much on those who appreciate the dangers as those who do not. Hodgson is probably correct in suggesting, on the basis of observing reactions at meetings where benchmarking has been discussed, that the pre-1992 universities are more likely to find benchmarking distasteful than the post-1992 universities (Hodgson, 1999). He argues that because of their different institutional history post-1992 universities are less hostile to notions of accreditation and validation.

"If departments already justify their programme design and performance to an internal academic review body, they can do as much for an external body. The value of these mechanisms in guaranteeing standards and identifying good practice is accepted." (Hodgson, 1999)

However, whilst the value of their existing mechanisms of audit may be "accepted" in post-1992 universities that value has yet to be proven. Ryan has argued that "[t]he functionality of audit to the new political class is that it constructs political power while appearing to secure the ends of justice and economy" (Ryan, 1998, 33). In "curtailing the discretion and privileges" of universities it seeks to create a new subservient relationship for the universities. It is thus as much a danger for post-1992 universities as it is for the traditional universities. In any event benchmarking is something different to previous audit mechanisms. Benchmarking introduces external standards into the audit in addition to internal ones. Post-1992 universities as much as pre-1992 universities need to be alive to the need to defend individual academic freedom in teaching, acknowledge and encourage the plurality of voices in law schools and reject attempts to suborn them into ventures not appropriate for the academy.

Notwithstanding all of the above, the importance of benchmarking for university law schools can easily be over-estimated. For all law schools benchmarking will bring more bureaucracy. However, benchmarking will only find a place in the culture of law schools as opposed to its paperwork if it can show that it connects with the central values of the law school. Work as diverse as that of Trow and Trowler shows that the private life of the university, its internal occupational culture, works to subvert any attempt to impose outside values on it (Trow, 1998, 96; Trowler, 1998). Like Melville's Bartelby when academics "prefer not to" do something and, instead, choose to follow their own academic ends there is very little that can move them. Unless benchmarking can show itself to be compatible with what law schools really want to do it is destined to find itself part of the formal but not the substantive life of the law school.

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