Part of the Problem or Part of the Solution? Legal Positivism and Legal Education

Abstract

Jurisprudential scholar J M Balkin proposes that understanding law for the purpose of learning and being able to apply it requires a conscious and active engagement on the part of the individual attempting to understand law and, by corollary, a consideration of the individual’s subjective contribution to law. Ignorance of the individual and his or her contribution to what law is, Balkin argues, prevents legal understanding. In the exploration of why or how law comes to be regarded as coherent — a process Balkin describes as ‘understanding legal understanding’ — Balkin posits that it is not sufficient merely to acknowledge the individual. Rather, the individual’s contribution to determinations of legal coherence must be considered in order to understand law. A similar focus on the role of the individual in understanding lies at the heart of David Ausubel’s epistemological theory of meaningful learning and its practical application in the concept mapping method developed by Joseph Novak. This paper links Balkin’s jurisprudential theory of legal understanding and Ausubel’s theory of meaningful learning and proposes the concept mapping method as a way to facilitate legal understanding.