TWO MODEST PROPOSALS FOR THE HAPPIER TEACHING OF PUBLIC LAW Dr Lars Mosesson Bucks New University

BACKGROUND It is regularly reported that many students on an LLB or GDL find Public Law (or Constitutional & Administrative Law) particularly challenging. This session will examine if this is found generally to be true; and, if it is, what we, as teachers of the subject, do and can do about it

SOME SUGGESTIONS FOR WHY IT IS FOUND SO CHALLENGING 1. It is a Challenging Subject! Students find it shapeless, confusing, irrelevant, not Law... It is unlike most other subjects on LLB or GDL, but still requires legal discipline The subject includes concepts (conventions & normativity, sovereignty, Rule of Law...) which are as challenging as any on the LLB or GDL. There is no creative document in the UK Diceys legacy & the Traditionalist mythology are misleading There are no centre or natural limits to the subject, and little agreement on its scope & content or on the approach to take Few students have any grasp of history or politics – or of the nature of language

2. Few Practitioners, Black-letter Lawyers or Private Lawyers Grasp it: It is a hybrid & contradictory area of study, involving formalism & realism; law & politics; norms & reality; the authorities & the daily news. The courts are often not the primary decision-makers of the issues. The subject involves appreciation of the big picture & deep issues & specifics., including political realities. There are key issues on which there is no one definitive answer. There is inherent uncertainty & constant change, involving history & the present & the near future.

3. The Books are very Variable: Some textbooks are good, but many lack coherence or clarity or depth or relevance or inspiration and a sense of the vitality of the subject – often dry, plodding, flat, pot-boilers, own lecture-notes, aiming low (if anywhere) – and the good ones are challenging at first. The collections of cases & materials are often eccentric, designed for the authors own particular course Law dictionaries are particularly unhelpful in this area

HOW SHOULD WE RESPOND? TWO SUGGESTIONS Be straight with the students: the subject is challenging - but it can make sense, if they work, think and use our support. - & it can become rewarding & even addictive! We must trust the students, inspire them, challenge them - not short- change them. Provide a conceptual framework & the relevant tools, & bring the subject to life.

1. Provide a Clear, Consistent & Living Conceptual Framework The purpose of the state as a living social organisation, within normative regulation = the need in a state for a system with officials, who need powers & to have & feel responsibilities, in a healthy balance = all the practical issues that flow from this = form & reality Setting up (constituting) a tennis club – and running it Justiciability – the limits to legitimate decision-making by judges – Render unto the courts that which is of the courts = and leave the rest to democratic politics

2. De-Bewitch our Intelligence a. Wittgenstein = Words & meaning = Essentialist fallacies & hidden pre-emptions Of facts & norms Of pens & love & shags... b. Many terms in Public Law are ambiguous and need clear & multiple definitions, e.g.:- - Constitution - Constitutional law - Separation of Powers - Convention - Parliament - Sovereignty - The Rule of Law - Democracy

PURPOSE & ADVANTAGES OF INCLUDING THESE ELEMENTS Give students the tools & motivation to make sense of the materials Enable the students to enjoy it - and to do better in assessments. Wider education = to understand: - the state-system; - practical social decision-making; - how inevitable social problems may be prevented or resolved; - and how to avoid wasteful confusions caused by careless language, as found in some books and in the media. Give the students the framework of Public Law within which Private Law operates.

DISCUSSION 1. Do your students find Public Law particularly challenging? Did you, as a student? If so, why do you think this is? How have you responded to this challenge? 2. Do you think the suggestions, above, would help your students? 3. What other ideas do you have for helping your students to understand & enjoy the subject?