Towards a Sound Pedagogy in Law: A Constitutionally Informed Dissertation as Capstone Course in the LLB Degree Programme

A Bauling*

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Author: Andrea Bauling

Affiliation: University of South Africa South Africa

Email: andrea.bauling@gmail.com

Date published: 25 April 2017

Editor: Prof Klaus Beiter

How to cite this article

Bauling A "Towards a Sound Pedagogy in Law: A Constitutionally Informed Dissertation as Capstone Course in the LLB Degree Programme" PER / PELJ 2017(20) - DOI http://dx.doi.org/10.17159/1727- 3781/2017/v20i0a1393

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Abstract

The Bachelor of Laws (LLB) degree programme should adequately prepare graduates for the demands set by both legal practice and the greater South African society. Law schools are not tasked with producing future legal practitioners, but rather critical thinkers who can engage with the relationship between law and society in a meaningful way, and who recognise their duty to uphold the values of the Constitution of the Republic of South Africa, 1996 when performing their professional duties. Resultantly law teachers should construct learning environments that engage students in ways that help them develop creativity; embedded subject knowledge; and autonomous learning, critical thinking, and lifelong learning skills. A well-structured LLB degree programme should focus on this broader conception of legal education and a dissertation module as capstone course should be closely aligned with this objective. A greater academic influence could result in an academically rigorous degree programme that produces more mature graduates who possess competencies and attributes that exceed that which is demanded of them by legal practice. One way to establish a greater academic influence in a degree programme would be to include a final year dissertation module which demands that students illustrate the ability to think critically. The final year of a degree programme should provide the student with several opportunities aimed at culminating the learning experience and consolidating the skills and knowledge acquired throughout the preceding years of study. Capstone courses facilitate in-depth learning and should be employed to teach crucial skills related to the purpose of the degree. A compulsory dissertation module as capstone course, which embodies the pedagogical approach of transformative legal education, should be included in the revised curriculum of all law schools in South Africa. This dissertation module should demand that students engage critically with the principles of transformative constitutionalism in order to facilitate thinking that goes beyond traditional and conservative constructions of the South African legal system and its purpose. Such a dissertation could develop a student's metacognitive ability and result in the development of new legal skills, and the sharpening of existing skills. When producing a dissertation a student is learning to write as well as writing to learn. Crucially, the process of disserting also requires legal research skills and the ability to formulate effective research strategies. A law student who is capable of utilising various sources of law, synthesising the information found therein and presenting it effectively is illustrating elements of authentic learning. But this form of authentic learning in will be near impossible to achieve without the active guidance of a willing supervisor. Law teachers perpetuate legal culture and the supervisor-student relationship creates the opportunity to sculpt the culture instilled so that it may have the desired impact on the student. The supervisor could advance this process by empowering the student to construct critical and transformative views of South African law. A dissertation module presented in this manner could produce students who are able to engage with law constructively and who will graduate as responsible citizens and aspiring legal professionals who are excited about inspiring social justice and transformation in their communities.

Keywords

Transformative legal education; transformative constitutionalism; pedagogy for law; capstone module; undergraduate dissertation; LLB review; writing skills; graduateness……………………………………………………….

  • 1 Introduction and background
  • Extraordinary levels of knowledge and competence are expected of the 21st century graduate because of the outstanding quality of the resources available.1 Accordingly, educational practices must be re-imagined assiduously in attempts to produce proficient citizens willing to take up the moral and ethical responsibility to develop the society they will serve as graduates. In order to prepare graduates adequately law teachers are tasked with constructing learning environments that engage students in ways that help them develop embedded subject knowledge, problem identification and solving capabilities, and lifelong learning skills.2 The process of writing a dissertation provides the opportunity to refine these skills. Embracing a problem-centred teaching and learning strategy that relies on the constructivist pedagogical hypothesis that learning is a result of social and cognitive exchanges3 may be successfully implemented in an undergraduate dissertation module.

    * Andrea Bauling. BA LLM (UP). Lecturer of Research Methodology for Law Students and Foundations of South African Law, University of South Africa. Email: baulia@unisa.ac.za. Initial research for this contribution was presented on 14 January 2014 at the Southern African Law Teachers' Conference held at WITS, Johannesburg. I wish to thank all those in attendance, the reviewers of this article, as well as Irma Kroeze and Emile Zitzke for comments on an earlier draft. The usual caveats apply.

    1 Ramphele Focus 1.

    2 Grabinger, Dunlap and Duffield 1997 ALT-J 5.

    3 Dunlap 2005 Educ Technol Res Dev 65; Quinot 2012 SALJ 418-425.

    4 In this contribution I employ "critical thinking" as relational to critical legal theory (Van Marle and Modiri 2012 SALJ 209-219). Van Marle 2009 Stell LR 286-301 expounds transformative constitutionalism as an embodiment of legal critique. I use "critical thinking" as referring to both thinking about and judging law and society in order to

    Research activities such as dissertations at undergraduate level have enticed little academic attention, both internationally and locally. This disregard is startling, since the dissertation provides the opportunity to acquire and develop a plethora of skills which include generic and academic skills, and those prized by South African legal practice. In this contribution I explore the notion of a compulsory and comprehensive final year dissertation, informed by the Constitution of the Republic of South Africa, 1996 (Constitution), as a capstone course of the South African Bachelor of Laws (LLB) degree. I argue that the value of such a dissertation is immeasurable and, if presented congruently with the principles and methodology of transformative legal education (TLE), it could ultimately lead to the graduation of prospective legal practitioners who are responsible for their own learning. I will further argue that the dissertation could be a learning tool used to transform the legal reasoning of students by challenging them to think critically4 and engage with

    challenge the validity of law and the status quo; the ability to evaluate law from within its innately political milieu; and providing suggestions for circumventing these existing challenges entrenched in South African law (Van Marle and Modiri 2012 SALJ 210-217). This mode of critiquing should take place alongside an acknowledgement of the post-apartheid context, which should address the unique historical challenges experienced under South African law.

    5 Chosi et al 2015 http://www.che.ac.za/sites/default/files/LLB%20Qualification% 20Standards_% 20 LLB%20final%20version_20150921_3.pdf. CHE 2016 http://www.che.ac.za/che_online_accreditation_system/national_reviews_system.

    6 For a detailed exposition of the specific graduateness attributes that should be instilled in LLB graduates in South Africa, see Smith and Bauling 2013 Stell LR 601-617.

    7 Greenbaum 2012 De Jure 110.

    8 Quinot and Greenbaum 2015 Stell LR 33; Campbell 2014 Stell LR 31; Quinot 2012 SALJ 430.

    9 See Woolman, Watson and Smith 1997 SALJ 30-64.

    legal materials on a deeper, more enriching level. This will result in graduates who are conscious of and excited by their duty to uphold the Constitution and its principles and to transform aspects of South African law that have remained inequitable, in order to ultimately transform the greater South African society.

    The South African Council on Higher Education (CHE) is in the process of reviewing the individual LLB degrees currently presented by South African law schools in order to determine whether these are presented consistently with the Qualification Standard for the LLB degree5. The review will also evaluate how the degree should be developed in order to ultimately produce better-rounded graduates who display the graduateness attributes6 desired in legal practitioners. Another justification for the review is the fact that law schools have incessantly been criticised for not teaching sufficient practice-orientated skills.7 The dissertation module I propose should be incorporated into the LLB curriculum at all law schools in South Africa, regardless of the form the degree programme will ultimately take upon recommendation by the review panel.

    All law teachers in South Africa have first-hand experience of the "articulation gap"8 illustrated by first-year students who are under-prepared for tertiary education.9 Unfortunately most existing skills courses in South African LLB degree programmes are insufficient to close this gap and consequently large numbers of graduates enter legal practice without mastering the basic skills required of legal practitioners.

    Two distinct approaches to teaching law exist, and the "trade school mentality" 10 has been criticised harshly.11 The notion that law teachers have a duty to produce "technocratic legal graduates"12 or "[churn] out functionaries who can serve the current system without thinking critically",13 is fundamentally flawed. Campbell calls for "a more 'academic' legal education".14 The inclusion of courses from disciplines beyond law and a greater academic influence could result in an academically rigorous degree programme and produce more mature graduates who possess competencies and attributes that exceed those which are demanded by legal practice.15

    10 Kennedy 1982 J Legal Educ 591.

    11 Campbell 2014 Stell LR 19-22; Van Marle and Modiri 2012 SALJ 211-212; Quinot 2012 SALJ 412; Zitzke 2014 Acta Academia 54; Quinot and Greenbaum 2015 Stell LR 30, 37.

    12 Van Marle and Modiri 2012 SALJ 214.

    13 Van Marle and Modiri 2012 SALJ 212.

    14 Campbell 2014 Stell LR 21, 30.

    15 Campbell 2014 Stell LR 21.

    16 Bangeni and Greenbaum 2013 Per Linguam 72, 81; Biggs and Hurter 2014 JJS 9, 24-26; Broodryk 2014 Obiter 453-466; Broodryk and Buitendag 2015 Obiter 615-630; Swanepoel and Snyman-Van Deventer 2012 Obiter 126; Snyman-Van Deventer and Swanepoel 2013 Stell LR 510-527; Quinot and Greenbaum 2015 Stell LR 39-41; Fourie 2016 PELJ 11.

    17 Snyman-Van Deventer and Swanepoel 2013 Stell LR 512-513.

    18 Broodryk 2014 Obiter 453-466; Broodryk and Buitendag 2015 Obiter 615-630; Quinot and Greenbaum 2015 Stell LR 40, specifically n 62. Both the UFS and Stellenbosch University have implemented integrated approaches to teaching skills, and more specifically legal writing skills, across the whole curriculum of their respective LLB degrees. Great successes have been noted and the methodologies adopted by these law schools could be implemented by others with equally great success. In this regard

    One way to embed a greater academic influence in a degree programme would be to include a final-year dissertation module which demands that students illustrate the ability to think critically. Working towards social justice can be attempted only if a broad understanding of the society in question is developed. Knowledge about the world constructed in non-legal contexts will be necessary if a student is to think creatively about law and its role in a society. A well-structured LLB degree programme should focus on a broader concept of education and a dissertation module should have the same aim.

    The vast majority of researchers in post-apartheid South African legal education are of the opinion that legal skills and writing skills should be taught throughout the curriculum and that the focus on the development of skills should not be present exclusively in the first year of study,16 since "basic legal skills simply cannot be taught without a good theoretical base".17 Congruent with this approach, persuasive arguments have been made for "writing-across-the-curriculum programmes"18 which, I argue, should culminate in a

    see Snyman-Van Deventer and Swanepoel 2013 Stell LR 510-527; Broodryk 2014 Obiter 453-466; Broodryk and Buitendag 2015 Obiter 615-630.

    19 Heringa Legal Education 57.

    20 Broodryk 2014 Obiter 455.

    21 Bangeni and Greenbaum 2013 Per Linguam 72, 75-76, 79; Swanepoel and Snyman-Van Deventer 2012 Obiter 122, 125; Snyman-Van Deventer and Swanepoel 2013 Stell LR 526-527; Heringa Legal Education 57.

    22 Snyman-Van Deventer and Swanepoel 2013 Stell LR 515.

    23 Generic academic skills and skills specific to legal practice as well as legal writing skills should be the focus of such an initiative.

    24 Snyman-Van Deventer and Swanepoel 2013 Stell LR 516-520.

    25 The contributions of the past five years include Broodryk and Buitendag 2015 Obiter 615-630; Broodryk 2014 Obiter 453-466; Biggs and Hurter 2014 JJS 1-30; Bangeni and Greenbaum 2013 Per Linguam 72-84; Snyman-Van Deventer and Swanepoel 2013 Stell LR 510-527; Swanepoel and Snyman-Van Deventer 2012 Obiter 121-134.

    dissertation module in the final year of study. Each module in the LLB curriculum should be utilised to teach referencing, critical reading, legal research, and writing and drafting skills in a manner that integrates skills development with the course content. These skills are by their nature learned in relation to one another and are often developed in combination,19 since writing may be viewed as an articulation of thinking.20 Skills should initially be learnt, then practised, and finally effort must be put into their maintenance until the skills in question become second nature to the student.21

    Legal writing is a specialised form of academic writing.22 Final-year LLB students cannot successfully complete a substantial or meaningful dissertation unless fundamental legal writing skills have been mastered before the final year of the degree. The dissertation module I suggest in this contribution is intended to follow on and be the culmination of a skills development initiative,23 which should be implemented in all years of the degree programme preceding the final year. I therefore presuppose that all law schools will embrace these complex strategies to facilitate and develop legal writing skills, in order to ensure the successful presentation of a dissertation module in the final year. Initialising a writing-intensive skills development approach in the first year, continuously developing these skills in conjunction with substantive law in the following years of study, and culminating the development of these skills in a final year dissertation is supported by Snyman-Van Deventer and Swanepoel.24

    A great body of South African knowledge exists on the importance of pedagogies for and approaches to teaching legal writing and generic legal skills to law students.25 Contributions to this crucial body of work fall beyond the scope of this contribution.

    The purpose of my contribution is to provide an outline for a proposed compulsory dissertation module to be included in the revised curriculum of all law schools in South Africa. Each institution has its own unique strengths and challenges and therefore it would not be possible or practical to present a dissertation module according to an identical tuition methodology at all law schools. The underlying pedagogical approach of TLE should still be employed by all when a dissertation module is designed, since its value is infinite, as I will illustrate. In order to outline the final year dissertation that I propose, I define the "capstone course", "dissertation", and the "dissertation as capstone course". I then endorse the pronounced importance of TLE and its relation to the dissertation module. I detail the value of the constitutionally informed dissertation as a capstone embodying the TLE principles, which are capable of developing metacognitive skills that are crucial to academic skills acquisition and development. I explain how such a dissertation would provide the opportunity to build the crucial supervisor-student relationship, as well as the multitude of benefits emanating from this relationship. I finally discuss some anticipated restraints and challenges before making concluding remarks.

  • 2 The dissertation module as a capstone course
  • As the word suggests, a capstone course should represent a student's definitive achievement in a degree programme. The capstone course is typically defined as a crowning course or experience coming at the end of a sequence of modules with the specific objective of integrating a body of relatively fragmented knowledge into a unified whole.26 The capstone course should aim to assess both theoretical and practical knowledge, help students to identify valid and important questions in a particular field, provide them with the opportunity to evaluate the interaction and interrelatedness of the sub-categories of a field, and open their minds to the fact that there may be more than one approach to every problem.27

    26 Brooks, Benton-Kupper and Slayton 2004 JGE 276.

    27 Davis 1993 Teaching Sociology 233.

    28 Levine "A President's Perspective" 52.

    29 Also see Quinot and Greenbaum 2015 Stell LR 41.

    Levine28 suggests that the capstone course may be viewed either as a transition29 or a conclusion. As a rite of passage, this course provides an experience through which undergraduate students both look back over their

    undergraduate curriculum in an effort to make sense of that experience, and look forward to a career which builds thereon.30

    30 Durel 1993 Teaching Sociology 223; Gardner "Capstone Experiences" 301; Quinot and Greenbaum 2015 Stell LR 41.

    31 Dunlap 2005 Educ Technol Res Dev 66.

    32 Dunlap 2005 Educ Technol Res Dev 66.

    33 Stefani et al 1997 Assess Eval High Educ 284 as quoted in Feather, Anchor and Cowton "Value of the Undergraduate Dissertation" 42.

    34 Dunlap 2005 Educ Technol Res Dev 66.

    35 Day and Bobeva 2007 IJQS 219.

    36 Day and Bobeva 2007 IJQS 219.

    37 Feather, Anchor and Cowton "Value of the Undergraduate Dissertation" 43.

    38 Feather, Anchor and Cowton "Value of the Undergraduate Dissertation" 43.

    The type of learning a student experiences when participating in a capstone course must, in order to achieve the goals of the degree programme it serves, be sensitive to the context in which it is situated.31 Within the South African LLB degree that context is the understanding that law functions within a constitutionally-conscious sphere which sees law as inherently immersed in the greater South African society. A capstone course also demands students' active participation in order to facilitate their own learning and enhance their understanding of the field they are attempting to master.32 Capstone courses allow educators to assess various crucial aptitudes and capacities for learning, which are not as easily evaluated by conventional means such as written tests or examinations.33 By their nature capstone courses involve problem-based learning environments designed to develop students' ability to solve problems by identifying the problem in question, conducting research, designing and implementing a solution, and developing field-specific knowledge and lifelong learning skills.34 A prime example of an accepted capstone course which encapsulates these skills is the dissertation.

    Day and Bobeva35 provide a comprehensive definition of the dissertation:

    An individual piece of work demonstrating understanding of the research process and critical understanding of a substantive knowledge domain is usually called a 'dissertation'. This type of studies (sic) often commands a prominent position as the 'flagship' of most business, information systems, social science, humanities or law degrees and their completion is deemed by many institutions to be the element demonstrating the 'honours worthiness' of the award.36

    The dissertation is unlike any learning or assessment tool the student has encountered in her preceding years of study. The undergraduate dissertation may be viewed as one of the most significant and intense pieces of academic work required of a student.37 It awards students the autonomy to select their research topics, decide how to approach and conduct their research, and self-regulate and manage their research projects.38 A dissertation provides

    the student with the opportunity to plan and complete an individual project through sustained independent effort.39 Ultimately identifying and unpacking the problem by completing the dissertation provides the student with an invaluable learning experience, as is required of a capstone course.40 This boosts the student's self-esteem greatly, confirming the value of the learning experience.

    39 Levine "A President's Perspective" 56.

    40 Levine "A President's Perspective" 56.

    41 Greenbank et al 2008 IJQS 9.

    42 Greenbank et al 2008 IJQS 9.

    43 Watson 1983 Improv Coll Univ Teach 182; Heringa Legal Education 57.

    44 Watson 1983 Improv Coll Univ Teach 184, 186.

    45 Watson 1983 Improv Coll Univ Teach 183.

    46 Chickering and Schlossberg "Moving On" 37.

    47 Durel 1993 Teaching Sociology 223.

    No South African data on the suggested length of an undergraduate dissertation exists. Edge Hill University (UK) evaluated all undergraduate dissertation modules presented at the institution and found that the required length of the dissertations varied between 5,000 and 12,500 words, with the most common requirement being 8,000 to 10,000 words.41 The majority of the modules required varying combinations of an initial proposal, a research plan, a draft introduction and methodology, a literature review, an oral defence, peer review, a poster, and personal reflection, to be assessed alongside the final dissertation.42

    The dissertation has been described as the assessment of the gold standard of a degree programme, the indispensable component of an hounours degree, and an appropriate capstone course.43 Watson argues that if the educational purpose of a dissertation is not clearly identified and defined, such a dissertation will serve little purpose within the degree programme.44 The degree of depth and complexity that the dissertation will demand of the student would be unknown to her.45 Students therefore need to know exactly what their supervisors expect of them and what they should have learned or achieved upon the completion of the module.

    The final year of a degree programme should provide the student with several opportunities and experiences aimed at culminating the learning experience and consolidating the skills and knowledge acquired throughout the preceding years of study.46 Capstone courses facilitate in-depth or deep learning47 and a degree programme may encompass more than one capstone course. If several capstone courses are prescribed, each must focus on the development of a different crucial skillset related to the purpose

    of the degree. The combination of various capstones might be required to fully facilitate the deep learning necessitated by a specific field of study.48

    48 Durel 1993 Teaching Sociology 223.

    49 The important role of the moot court and the law clinic within the South African LLB degree warrants in-depth further research which falls beyond the scope of this contribution. In this regard see Iya 2001 Africa Insight 47; Swanepoel and Bezuidenhout 2012 De Jure 46-60.

    50 Examples in this regard are those of oral advocacy skills and the ability to work collaboratively. These capabilities are not learnt in a dissertation module, but rather in the moot court and practical legal modules, whilst the understanding of the imperative of ethical conduct could be fostered in all three of these modules.

    51 The dissertation module's capacity to infuse the student's knowledge base with the transformative values of the Constitution is expounded in 4.1 below.

    52 Snyman-Van Deventer and Swanepoel 2013 Stell LR 518-520 make a compelling argument for introducing the student to the research proposal in the year preceding the final year of study.

    53 Shah 1999 Area 308.

    The complex nature of the South African legal system adds to the already challenging demands set by the South African LLB degree. No single capstone course could comprehensively assess all the skills an LLB graduate is expected to have mastered during her studies. It would thus be a pedagogically-sound approach to utilise a variety of capstone courses. The combination of a dissertation module, moot court course and practical legal experience, such as that provided by structured work in a law clinic or compulsory community service,49 would provide final-year law students with an enriching array of learning experiences. A greater array of skills and graduateness attributes may be instilled in the student if several capstone courses are implemented in a structured and cohesive manner.50 The student will be granted several learning experiences during which to grasp the plurality of the South African legal system as well as the role of the Constitution in an unequal and continuously transforming society.51

    A compulsory dissertation spanning the final year of study52 would therefore be a suitable capstone course within the revised LLB degree since it would be able to guide a student to achieve a great number of learning and graduateness-orientated goals. This dissertation should be at least 8, 000 words in length in order for the student to attain the desired benefit from completing such a substantial research and writing project.

    The "agenda" of a discipline53 should be accommodated by all capstone courses in the degree programme granting access to that discipline, and the LLB dissertation is no exception. Here the agenda must be that of transformative constitutionalism and the urgent need to transform the

    unequal South African society by legal means. Quinot54 indicates that TLE demands that the substance of what is taught in the LLB degree programme, as well as how it is presented, should be transformed to meet the paradigmatic demands of transformative constitutionalism.

    54 Quinot 2012 SALJ 414.

    55 Kennedy 1982 J Legal Educ 591.

    56 Smith and Bauling 2013 Stell LR 604-606; also see Fourie 2016 PELJ 2-3.

    57 Quinot 2012 SALJ 412, 432.

    58 Van Marle and Modiri 2012 SALJ 211-212; Smith and Bauling 2013 Stell LR 616; Campbell 2014 Stell LR 18-19; Davis 2015 Acta Juridica 177.

    59 Quinot 2012 SALJ 412, 416, 432.

    60 Smith and Bauling 2013 Stell LR 604.

    61 Quinot 2012 SALJ 412, 415.

    62 Quinot 2012 SALJ 431.

    63 Quinot 2012 SALJ 414-416; Quinot and Greenbaum 2015 Stell LR 38.

  • 3 Transformative legal education
  • Possibly the most emphatic description of the law school and law teacher's inherent effect on the perception of students is that provided by Kennedy:55

    Because students believe what they are told, explicitly and implicitly, about the world they are entering, they behave in ways that fulfil the prophecies the system makes about them and about that world.

    It is therefore of the utmost importance that the law teacher understands her inevitable impact on her students and the impact her teaching will ultimately have on their role in society.56 The ethical duty to harness this influence may not be ignored. Quinot57 argues that it is the duty of all law teachers to adopt the critical consideration of educational theory and a sound pedagogy for teaching law, since law must be taught responsibly.58 The theoretical framework suggested as being appropriate in this regard is that of TLE.59

    Transformative education involves an adult student, who has existing beliefs and opinions, being exposed to and influenced by a different worldview.60 TLE entails a student-centred approach and non-linear concept of transferring and constructing knowledge, and calls for substantive rather than formalistic legal reasoning.61 It acknowledges that teaching law is a highly complex endeavour since law has a complex relationship with the society it serves.62 According to Quinot, transformative constitutionalism has several implications for legal education, one of these being that an egalitarian mode of legal reasoning should be instilled in students.63 But teaching students to

    think critically and to develop a critical approach to law is not a straightforward task.64 Guidance can be found in the three essential elements of TLE.

    64 Van Marle and Modiri 2012 SALJ 210.

    65 Quinot 2012 SALJ 411-412; Quinot and Greenbaum 2015 Stell LR 34-35.

    66 Klare 1998 SAJHR 150.

    67 Klare 1998 SAJHR 166; Davis 2015 Acta Juridica 181.

    68 This list is not exclusive, but seminal sources are indicated: Moseneke 2002 SAJHR 309-319; Botha 2002 TSAR 612-627; Botha 2003 TSAR 20-36; Davis "Elegy to Transformative Constitutionalism" 57-66; Botha 2004 SAJHR 249-283; Le Roux 2004 SAPL 629-664; Pieterse 2005 SAPL 155-166; Langa 2006 Stell LR 351-360; Van der Walt 2006 Fundamina 1-47; Liebenberg 2006 Stell LR 5-36; Van Marle 2009 Stell LR 286-301; Klare "Concluding Reflections" 423-432; Davis and Klare 2010 SAJHR 403-509.

    69 Klare 1998 SAJHR 168-172.

    70 Quinot 2012 SALJ 418, 431-432; Quinot and Greenbaum 2015 Stell LR 30; Smith and Bauling 2013 Stell LR 608-609; Fourie 2016 PELJ 3, 7; Zitzke 2014 Acta Academia 55; Campbell 2014 Stell LR 27-28.

    71 Quinot 2012 SALJ 419; Quinot and Greenbaum 2015 Stell LR 35 (own emphasis).

    Firstly, it must be acknowledged that TLE as pedagogy for legal education in South Africa is first and foremost rooted in the egalitarian and constitutionally inspired principles of transformative constitutionalism.65 Transformative constitutionalism as theory and methodology was first outlined by Klare66 as:

    … a long-term process of constitutional enactment, interpretation, and enforcement committed…to transforming a country's political and social institutions and power relationships in a democratic, participatory and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social change through nonviolent political processes grounded in law.

    Klare explains that it is the duty of legal academics and law teachers to research, advocate and teach the Constitution's inherent ability to transform South African law into a more egalitarian system, and that conservative readings of the law should be abandoned in order to truly realise the transformative aims of the Constitution.67 In answer an enormous body of work emerged, celebrating and developing the concept.68 The over-arching theme of this corpus is the importance of understanding law and specifically the Constitution, as set in a political and socio-economic context, which should support the society in which it operates.69 The TLE pedagogy provides a platform from which to facilitate a transformed approach to understanding law,70 but in order for it to be effectively implemented a novel approach to teaching is required.

    Secondly, TLE demands a constructivist approach to education, which entails that "'knowledge is not found, but made'".71 New knowledge is assimilated alongside existing knowledge and world views through learning

    experiences.72 Constructivism demands that all students must actively engage in their own learning in order to create knowledge and facilitate understanding.73 Students must thus be guided in their learning and not merely be provided with information handed down as absolute truths. The way in which law is taught must strengthen the idea that law itself is not cast in stone.

    72 Quinot and Greenbaum 2015 Stell LR 35.

    73 Quinot and Greenbaum 2015 Stell LR 36.

    74 Quinot and Greenbaum 2015 Stell LR 36-37, 51-58.

    75 Quinot 2012 SALJ 430; Quinot and Greenbaum 2015 Stell LR 37.

    76 Van Marle and Modiri 2012 SALJ 210; Quinot 2012 SALJ 420-422; Quinot and Greenbaum 2015 Stell LR 30, 37.

    77 Nicholson 2011 Fundamina 113. Also see Van der Walt 2006 Fundamina 29-30, 32, 36-37; Zitzke 2014 Acta Academia 68.

    78 Hauhart and Grahe 2010 Teaching Sociology 4; Rowley and Slack 2004 Education and Training 176.

    79 Greenbank et al 2008 IJQS 16; Watson 1983 Improv Coll Univ Teach 184.

    Finally, Quinot's approach involves understanding and embracing the relationship between the creation of knowledge, teaching and learning, and the information and communications technology (ICT) environment.74 Engaging ICT tools in finding and creating knowledge is of the utmost importance and a failure to acknowledge and effectively harness these tools could result in ostracizing law students.75 Effectively incorporating ICT in teaching will mean that innovative learning environments must be created to accommodate these changes.

    TLE embraces the notion of teaching "context" instead of purely "text".76 Law students should be taught to critique judicial decisions, that socio-economic and political factors should influence and are influencing the law, and that the prevailing ideology of a society plays an undeniable role in its law-making process.77 The value of infusing transformative constitutional principles and the teaching methodologies of TLE into a compulsory dissertation module for final year LLB students is immense and deserves detailed discussion.

  • 4 The value of a constitutionally informed dissertation as a capstone
  • The sole reason for including a dissertation module in a degree programme cannot be that it is a bridge to postgraduate studies, 78 or a form of teaching and learning not yet experienced by the student.79 A well-defined rationale is required to ensure the efficient presentation of such a module.

    The capacity to conduct independent research as is illustrated by completing a dissertation is regarded as an expression of graduateness.80 When this is coupled with the suggested foundation of graduateness for law students in South Africa, namely the ability to see the value of transforming the South African society at large through the application of law and the Constitution,81 it becomes evident that a final-year LLB dissertation grounded in constitutional principles must be demanded of LLB students. The pedagogical value of including a compulsory dissertation module based on the principles of TLE is immense. Such a dissertation could serve as an embodiment of the principles of TLE in the curriculum, develop a student's metacognitive ability, and result in the development of new legal skills and the sharpening of existing skills, ultimately contributing to the academic rigour of the LLB degree programme. The value of the role of the supervisor in the student's development is also of pronounced importance.

    80 Garde-Hansen and Calvert 2007 ALHE 106.

    81 Smith and Bauling 2013 Stell LR 616.

    82 Smith and Bauling 2013 Stell LR 615.

    83 Quinot and Greenbaum 2015 Stell LR 36.

    84 Quinot 2012 SALJ 415; Quinot and Greenbaum 2015 Stell LR 38.

  • 4.1 The dissertation as the embodiment of TLE
  • A dissertation is an extensive individual research project which demands research, critical reading, and critical thinking skills; the synthesis of information; and the ability to write well. The various individual challenges set by a dissertation are related to the essentials of TLE. By aligning the proposed dissertation module with the requirements inherent in a TLE approach to teaching and learning, the student will have a more enriching learning experience which is better-suited to instil the required graduateness attributes82 in the student.

    The demand for critical engagement with the theory of transformative constitutionalism can be addressed directly by the student's research question. The importance of the social context of the topic selected should be addressed in order to reinforce the concept of law as a social construct that affects the daily lives of citizens.83 There are various ways to inspire a student to consider, at the centre of the dissertation, the effect of the Constitution on the law, and if the student is not able to find such a link, she should be instructed to explore another research topic. The impact of the Constitution (or lack thereof) on the law at the focus of the student's dissertation must be a central theme thereof. Ideally the student should also illustrate an understanding of the plurality of the South African legal system.84

    Substantive legal reasoning must thus be inspired by supervisors in order for students to practise this skill. A law teacher engaged in this endeavour understands that she must "guide a student's own efforts at construction".85

    85 Quinot 2012 SALJ 420.

    86 Zitzke 2014 Acta Academia 53-73.

    87 Zitzke 2014 Acta Academia 69-70.

    88 Le Roux v Dey 2011 3 SA 274 (CC).

    89 Le Roux v Dey 2011 3 SA 274 (CC) para 98.

    90 Stark criticism of the judgment is provided by Barnard-Naudé and De Vos 2011 SALJ 407-419.

    91 Zitzke 2014 Acta Academia 70.

    92 Zitzke 2014 Acta Academia 62-63.

    93 Zitzke 2014 Acta Academia 63.

    94 Zitzke 2014 Acta Academia 65.

    95 Zitzke 2014 Acta Academia 65-66.

    Examples of how a student can be guided to critically engage with the role of the Constitution in delict are provided by Zitzke.86 He illustrates the teacher of delict's duty to align her tuition strategy (in content and methodology) with the transformative constitutional project. He provides iniuria as an example of a delict that can be used effectively in a classroom situation to teach students why it is crucial to critique judgments.87 The Constitutional Court's judgment in Le Roux v Dey88 awarded damages to a teacher who was depicted as being involved in a homosexual act in a picture distributed amongst learners in a high school. The Court othered homosexual sexual conduct by describing it as "immoral" and "promiscuous",89 thereby entrenching a heteronormative construct, which is in direct contrast with constitutional principles.90 He explains that facilitating a discussion on the case could guide students to develop their own understanding of the importance of aligning law with constitutional principles and of protecting marginalised groups.91

    Zitzke also explains that the concept that in delict rights protect the oppressed may be challenged.92 Society assumes that the good name of a rich and powerful person is worth more than that of her less affluent counterpart. When a wealthy person institutes a claim based on iniuria she automatically "has more to lose" and will be entitled to greater damages than a destitute person would. In this way the powerful and influential members of society, who own the most property, stay on top and are awarded better protection by the courts.93 He also questions whether the compensation for defamation should always necessarily be monetary in nature.94 All individuals do not equally regard money as being important, and the payment of a sum of money as damages does not allow for restorative justice and an apology.95

    These examples explain to students that they should question whether every judicial decision is always just, that fundamental rights automatically protect all who live under them equally, or that the award of money as compensation is always appropriate. Each teacher of substantive law should find ways of teaching her module in a manner that forces students to question the validity of the law in question. If students do not find the practice of critiquing law foreign, they will not feel it impossible to attempt to do so in a dissertation.

    Likewise, the constructivist learning environment necessitated by TLE can be created effectively in a dissertation module. Here a student is required to engage with the information she has gathered through research in order to make sense of it for herself before she organizes her thoughts on the page. This opportunity for self-expression also allows students to illustrate their understanding of the interconnectedness of South African law and that they have synthesised the knowledge constructed throughout the LLB degree programme.

    The dissertation module cannot be presented in a manner that is of substantial value if the demands of the ICT environment are not embraced. The effective use of ICT in legal education provides the opportunity to develop higher order thinking skills.96 The possibilities are endless, and when the dissertation module is designed these should be given careful consideration. The research required to complete the dissertation, as well as the physical process of producing the final product, inevitably demands that students interact with technology and online resources. Being able to effectively navigate and master the use of multiple online research platforms, search engines and databases must be seen as an attribute of graduateness in all LLB degrees across South Africa, since graduates' technological literacy enhances their employability.97

    96 Quinot and Greenbaum 2015 Stell LR 53.

    97 Quinot and Greenbaum 2015 Stell LR 47.

    TLE demands a re-evaluation of what and how we teach. When deciding on the exact approach for presenting a dissertation module, both must be considered. The dissertation module I am advocating must involve more than just the writing up of a research report. Alternative assessment initiatives should be utilised to allow students the opportunity to develop a greater scope of skills. Students' learning in a dissertation module could be enhanced and encouraged by effectively utilising group tutorials (presented online or face-to-face), promoting peer mentoring, and creating virtual learning environments and e-resources that students could utilise to start research

    discussions.98 In order to facilitate peer mentoring and collaborative learning, and to create a space for peer-assessment,99 students who have completed a dissertation may be asked to do an oral presentation on their findings or to reflect on their experiences of the research process.100 If a dissertation module is presented thoughtfully it will inevitably demand creativity from the student. A blended approach to learning involving face-to-face meetings, combined with e-learning and online learning content, such as podcasts, video tutorials, and electronic self-assessment opportunities, is advocated.101

    98 Garde-Hansen and Calvert 2007 ALHE 115.

    99 Regarding the role of peer assessment, see Watson 1983 Improv Coll Univ Teach 185.

    100 Garde-Hansen and Calvert 2007 ALHE 114.

    101 Quinot and Greenbaum 2015 Stell LR 52.

    102 Snyman-Van Deventer and Swanepoel 2013 Stell LR 525; Garde-Hansen and Calvert 2007 ALHE 115.

    103 This concept is also known as "metacognitive awareness, … feeling of knowing, judgment of learning, theory of mind, metamemory, metacognitive skills, executive skills, higher-order skills, … heuristic strategies and self-regulation" (Veenman, Van Hout-Wolters and Afflerbach 2006 Metacognition Learning 4).

    104 Veenman, Van Hout-Wolters and Afflerbach 2006 Metacognition Learning 3.

    Innovative ways to inspire students to perform well in their dissertations should be considered. Students could be encouraged to focus on the satisfactory completion of a dissertation by providing them with congratulatory letters for work of outstanding quality, introducing a faculty research prize for undergraduate dissertations, or publishing dissertations which have been awarded distinctions in a student law review or faculty journal.102 Here law schools should design strategies aligned with their individual challenges and needs and those of their student bodies.

    The performance of a dissertation module presented in line with TLE principles would have various undeniable benefits for the way in which students learn and think. It is critical, however, that students should also become aware of the fact that they are learning, and how their thinking and learning is evolving.

  • 4.2 Metacognition
  • When considering the value of a capstone course in a degree programme, the importance of the role of metacognition cannot be ignored. Metacognition103 is defined as "the knowledge about and regulation of one's cognitive activities in learning processes"104 and is viewed as one of the most powerful predictors of learning. The term denotes a student's knowledge and understanding of her own problem-solving abilities and the cognitive activities

    involved in learning: "thus 'higher order cognition about cognition'".105 Metacognitive skills embolden students to accept and continuously practise deep learning, which ultimately results in independent learning and self-motivation.106

    105 Veenman, Van Hout-Wolters and Afflerbach 2006 Metacognition Learning 4, 5.

    106 Quinot and Greenbaum 2015 Stell LR 44-45.

    107 Veenman, Van Hout-Wolters and Afflerbach 2006 Metacognition Learning 5-6.

    108 Kieft, Rijlaarsdam and Van den Bergh 2006 EJPE 18-20, 29-30; Broodryk 2014 Obiter 455-456; Snyman-Van Deventer and Swanepoel 2013 Stell LR 514, 527; Quinot and Greenbaum 2015 Stell LR 40.

    109 Kieft, Rijlaarsdam and Van den Bergh 2006 EJPE 19.

    110 Snyman-Van Deventer and Swanepoel 2013 Stell LR 511.

    111 Veenman, Van Hout-Wolters and Afflerbach 2006 Metacognition Learning 6 (own emphasis).

    112 Veenman, Van Hout-Wolters and Afflerbach 2006 Metacognition Learning 6.

    Metacognition can take place only once a student understands the fundamental concepts within a field.107 Initial research will further the student's grasp of the fundamentals of the research topic, whereafter metacognition may take place once the student realises that the process of conducting research and writing is shaping her understanding of the selected topic even further. She also comes to understand that she is learning, and how she is learning, because she is both learning to write and writing to learn.108 Practising writing teaches a student both how to write, and about the topic on which she is writing, therefore greatly enhancing both thinking and learning.109 Legal writing advances intellectual independence110 and advancing this competency should be regarded as a crucial goal of a writing-across-the-curriculum programme.

    Metacognition has an even greater benefit in that it correlates to intelligence but, more accurately, "contribute[s] to learning performance on top of intellectual ability".111 Therefore all students, regardless of their intellectual capacity, benefit from developing their metacognitive skills and learn better when they understand how they learn. Metacognition can become a subconscious activity which occurs automatically once a student has made a habit thereof.112 This implies that the student may take the metacognitive skills learnt during dissertation writing forward when she becomes a life-long learner.

    The process of reading for and writing a dissertation develops various existing skills. It also provides the student with the opportunity to master new skills not acquired before.

  • 4.3 Skills acquisition and development
  • "Research does not come naturally"113 and novice researchers may be disheartened by the demands thereof upon their first introduction to a substantial research project such as a dissertation. This is partially because writing is a complex activity that requires great effort on the part of the author.114 Longer writing pieces call for analysis, application and synthesis, critique, deconstruction, and comparison. A student may be good at writing examinations because this process is familiar to her, but she might struggle initially with a research project.115 This does not mean that she is incapable of acquiring and mastering the skills a dissertation necessitates.116

    113 De Wit 2012 Progressio 48.

    114 Kieft, Rijlaarsdam and Van den Bergh 2006 EJPE 19.

    115 De Wit 2012 Progressio 49.

    116 De Wit 2012 Progressio 49.

    117 De Wit 2012 Progressio 50; Greenbank et al 2008 IJQS 15.

    118 Quinot 2012 SALJ 416, 418; Van Marle and Modiri 2012 SALJ 218.

    119 Van Marle 2010 PSLR 7; Swanepoel and Snyman-Van Deventer 2012 Obiter 129; Bangeni and Greenbaum 2013 Per Linguam 77.

    120 Broodryk 2014 Obiter 454.

    121 Rowley and Slack 2004 Education and Training 177; Snyman-Van Deventer and Swanepoel 2013 Stell LR 514.

    122 Rowley and Slack 2004 Education and Training 177; Garde-Hansen and Calvert 2007 ALHE 106.

    123 Wiersema and Licklider 2007 HER 45-46. In this regard see Garde-Hansen and Calvert 2007 ALHE 107, 114; Hauhart and Grahe 2010 Teaching Sociology 11.

    Completing an undergraduate dissertation in law is indicative of the refinement of a number of crucial skills demanded of a legal practitioner: critical reading, reflection, solution-orientated thinking, clear and concise writing, the ability to do legal research, the extrapolation of crucial information, and life-long learning.117 However, the most important skills learnt upon the satisfactory completion of a dissertation are those pertaining to autonomous learning, critical thinking, creativity, and legal writing.118 Writing is inextricably linked to reading and thinking; if this link is severed the end result is uncritical, unreflective and one-dimensional.119 Students need to understand that they must be able think critically, argue, and analyse as part of the writing process.120 It must be emphasised again that the dissertation module should not be the first module in which the student is required to learn or hone these skills.121

    Various skills are learned only when doing extensive research and writing. A dissertation offers a distinctive opportunity for autonomous and liberated learning,122 which is crucial, since "students are ultimately responsible for their own learning".123 Students are indirectly assessed on their ability to

    adhere to deadlines with minimum supervision, and to develop initiative, self-control and time management skills.124

    124 Day and Bobeva 2007 IJQS 219; Garde-Hansen and Calvert 2007 ALHE 106; Watson 1983 Improv Coll Univ Teach 183.

    125 In this regard see Quinot 2012 SALJ 417-420.

    126 Quinot and Greenbaum 2015 Stell LR 37.

    127 Hauhart and Grahe 2010 Teaching Sociology 4.

    128 De Wit 2012 Progressio 60.

    129 Daly 2008 J Legal Educ 455.

    130 Daly 2008 J Legal Educ 455.

    131 Quinot and Greenbaum 2015 Stell LR 37; Rowley and Slack 2004 Education and Training 179; Daly 2008 J Legal Educ 459.

    Legal practitioners are problem solvers and therefore the skills of critical thinking and analysis are of the utmost importance. Law graduates must become creative problem solvers who have learned the crucial skill of critiquing existing law within the framework of transformative constitutionalism, in order to imagine what the law could be or ought to be.125 Law teachers should guide students to be active in their learning and be independent enough to form their own view on the law being taught, and its alignment (or not) to the transformative guidelines set by the Constitution.126 A dissertation module that explicitly requires this type of analysis of law will inevitably develop this crucial skill. As a capstone course the dissertation module would create a cumulative learning experience that would grant the student the opportunity to synthesise and apply the course materials presented throughout the curriculum.127 It could also guide a student's thinking away from her compartmentalised view of the South African legal system, which is often fostered by the pedagogies currently utilised in most lecture halls and strengthened by most traditional assessment strategies.

    Another vital skill an LLB graduate should master is the ability to conduct relevant and comprehensive legal research. Some of the associated skills the student will have to acquire include identifying terms to use when doing a literature search, illustrating a practical ability to base findings on the most recent sources of law, locating and reading literature in order to determine the relevance and quality thereof, effectively organising the selected sources in the write-up of the research, and presenting the findings in a cohesive manner.128 Focussing great attention on developing the student's ability to conduct research is paramount. "There is no law library on the Starship 'Enterprise'".129 If a legal source is not accessible on the Internet it does not exist and is of no relevance in the eyes of the law student of today.130 Apart from being taught how to access electronic legal sources, students should also learn how to gauge their value.131 The volume of information available

    to the law student is astronomical, but the value thereof may be questionable.132 As the wealth of information grows, the skills necessary to navigate it all become even more important.133 The law librarian should be tasked with providing law students with the basic skills required to negotiate legal databases,134 but supervisors are ultimately responsible for educating dissertation students on how to determine the value of a specific source, as well as its importance as a primary or secondary source of law. This is a skill that should be taught throughout the LLB curriculum but the supervisor, who ultimately assesses a student's understanding of this concept, is tasked with honing this vital skill.

    132 Daly 2008 J Legal Educ 455; Quinot 2012 SALJ 426; Quinot and Greenbaum 2015 Stell LR 36.

    133 Daly 2008 J Legal Educ 461.

    134 In this regard also see Snyman-Van Deventer and Swanepoel 2013 Stell LR 516.

    135 Quinot and Greenbaum 2015 Stell LR 47.

    136 Rowley and Slack 2004 Education and Training 177.

    137 De Wit 2012 Progressio 50.

    138 De Wit 2012 Progressio 50.

    A law student who has the ability to utilise various sources of law, synthesise the information found therein and present it effectively is illustrating elements of authentic learning.135 This form of authentic learning in a dissertation module would be near impossible to achieve without the active guidance of a willing supervisor.

  • 4.4 The influence of the supervisor
  • Students who attempt their first dissertation need intense guidance on how to produce a final product which allows them to demonstrate that they are in fact capable of analysis, synthesis, creativity and coherence.136 The importance of the role of the supervisor in developing the skills a novice dissertation student requires is immeasurable. The interactions between the student and supervisor, which include posing questions; debating aspects of the topic; assisting in the sharpening and reigning in of arguments and ideas; guiding a student to conform to the research standards the discipline entails; and assisting a student with the conceptualisation, execution and completion of the research project, are central to the endeavour. Without the supervisor's direction the student will not be able to refine the complex skill of dissertation writing.137

    Often it is required of a supervisor to step into the role of supporter and mentor.138 The nature of the supervisor-student relationship is such that the supervisor is in an ideal position to hone the student's communication (both

    verbal and written), interpersonal, and listening skills, as well as to boost the student's self-confidence in her research and writing ability.139 Compulsory individual supervision sessions should be used specifically to stimulate critical thinking on the selected research topic. When discussing what has already been mastered and how to improve upon a previous attempt, it is imperative that the supervisor guide the student by asking questions which may potentially broaden her perspective on the topic.

    139 De Wit 2012 Progressio 50.

    140 Rowley and Slack 2004 Education and Training 178.

    141 Kennedy 1982 J Legal Educ 591-615; Klare 1998 SAJHR 168, 170; Quinot 2012 SALJ 416-417.

    142 Rowley and Slack 2004 Education and Training 180.

    It is unrealistic to expect undergraduate students to produce new knowledge, but the evaluation of legal sources from a specific theoretical perspective is essential.140 Supervisors may expect students to demonstrate a certain rudimentary understanding of legal theory, or at least of a specific school of thought. The student should be able to evaluate her specific topic from within the scope of this theoretical framework, and within the South African LLB degree this theory must be that of transformative constitutionalism. If a student is able to accomplish this, she will automatically illustrate her ability to critically engage with the subject matter of the dissertation, and the degree programme as a whole.

    Such a capstone dissertation module in the LLB degree would require teaching and learning practices and policies in congruence with the framework of TLE. This demands that a supervisor become a role model and mentor to the student. Law teachers perpetuate legal culture141 and the supervisor-student relationship should create the type of situation where the culture instilled can be sculpted to deliver the desired impact.

    Undergraduate dissertation supervision is an arduous task that demands that supervisors support their students towards realising their potential.142 It is of the utmost importance that the supervisor should act as the student's mentor. Due to the nature of the supervisor-student relationship, this is most likely the most intimate relationship the student will build with any academic during her studies. The continuous personal interactions will automatically shape the manner in which the student thinks a legal professional should act, communicate and conduct herself. The supervisor's conduct and demeanour could also have a lasting impact on the student's work ethic and view of law within a constitutional framework.

    There is no denying that undergraduate supervision is a time-consuming endeavour. It is immensely rewarding, however. The LLB dissertation has the inherent capability to contribute to the process of shifting a student's perspective of law away from the conservative and in line with that demanded by the Constitution. The supervisor should assist the student in selecting a topic which can be evaluated from a constitutional vantage point and guide her to successfully accomplish this task. This embraces a pedagogically sound approach to teaching law in South Africa. Adopting this approach to presenting an LLB dissertation module will, however, not be without its challenges.

  • 5 Constraints and challenges
  • The most fundamental form of innovation is the transformation of the values of teachers. All other forms of innovation—in materials, methods, pupil grouping and so forth—are often dependent for their success upon a shift in the values of teachers.143

    143 Hoyle "Strategies in Curriculum Change" 96.

    144 Watson 1983 Improv Coll Univ Teach 183.

    Many supervisors dismiss the responsibility of undergraduate supervision as an inevitable burden imposed by faculty management. It is convenient to assume that undergraduate dissertations necessitate administrative intervention and effort disproportionate to the benefits experienced by students.144 The potential value of the dissertation-writing process and the module's role in the development of various aspects of graduateness are unfortunately overlooked. It goes beyond the scope of this contribution to include detailed analyses of the constraints and challenges law teachers who adopt the TLE pedagogy, or those who attempt to present a pedagogically sound dissertation module, will inevitable encounter. Some should be mentioned, however.

    Criticism of and resistance to existing and potential writing-across-the-curriculum programmes has been observed in several law schools across the country. It may be assumed that because a dissertation module is related to this project, and because both require additional effort from law teachers, the opposition may be similar. The reluctance to engage enthusiastically with a writing-intensive approach is attributed to the fact that law teachers feel underqualified, uninterested and insufficiently experienced to teach and assess these skills; to an already unmanageable workload worsened by ever-increasing student enrolment figures, poor student-staff ratios, seemingly

    endless administrative duties and continuous pressure to publish one's own research, and complete postgraduate qualifications; to the fact that semesters are deemed too short, and the syllabus appears already filled to capacity with crucial substantial law content; to the reality that teaching and assessing skills are labour-intensive and time consuming processes which demand continuous feedback and rigorous student contact; and to the refusal of established researchers and law teachers to learn new skills or teach in an innovative way.145

    145 Broodryk 2014 Obiter 464-465; Biggs and Hurter 2014 JJS 24-25; Swanepoel and Snyman-Van Deventer 2012 Obiter 133; Snyman-Van Deventer and Swanepoel 2013 Stell LR 513, 515; Quinot and Greenbaum 2015 Stell LR 45-46, 60; Heringa Legal Education 55-56. Many of these concerns are valid. In order to establish a consolidated teaching approach aimed at continuous skills development across the LLB curriculum of a law faculty, faculty management would have to support staff and come up with strategies to enforce such a tuition policy across all the modules in the curriculum.

    146 Rowley and Slack 2004 Education and Training 176-177.

    147 Rowley and Slack 2004 Education and Training 177.

    148 Rowley and Slack 2004 Education and Training 177.

    149 Rowley and Slack 2004 Education and Training 178.

    150 Broodryk 2014 Obiter 464-465.

    151 Swanepoel and Snyman-Van Deventer 2012 Obiter 121-134.

    Undergraduate supervision is an abbreviated version of postgraduate supervision and presents more challenges due to the fact that the supervisor has less contact and time with the student in which to determine her individual learning needs.146 The supervisor thus has a much shorter period in which to formulate and implement intensive individual interventions to assist the specific student to refine her dissertation-writing skills.147 The supervisor needs to implement varied support and supervision with different students, based on their individual learning capabilities and pre-existent skillsets, and this can be challenging.148 Students also display varying levels of motivation, which further hampers a supervisor's attempts to teach effectively.149

    Students' propensity to commit plagiarism frustrates supervisors immensely.150 The prevalence could be attributed to several causes. Students fail to understand what plagiarism is and thus commit it unintentionally, students do not grasp the severity of the consequences of being found guilty of plagiarism, or students disregard their knowledge and understanding of the concept in order to complete work quicker, or to their minds, to a higher standard than they would have been able to achieve through independent effort.

    No clear-cut solutions or easy approaches are available with which to combat these challenges, but some suggestions have been made in this regard.151

    Co-operation between various law teachers in a faculty, which would require instilling a measure of excitement in colleagues, is essential. Assistance, guidance and enforcement from and by university or faculty management could provide substantial support and streamline an attempt to take on anticipated challenges.

    Successful supervision requires that the supervisor be open to the idea of developing her supervision skills. Supervisors need to embrace the responsibility to develop their expertise in the use of digital information resources and then be eager to share this expertise with students.152 Incentivising teaching skills development for law teachers and introducing them to pedagogical thinking and the importance of TLE could be a start.153 Stakeholders, within the university and from legal practice, should assist law teachers in their duty to teach effectively and in line with the requirements of the Constitution.154

    152 Rowley and Slack 2004 Education and Training 180.

    153 Quinot and Greenbaum 2015 Stell LR 61.

    154 Quinot and Greenbaum 2015 Stell LR 61.

    155 Campbell 2014 Stell LR 26.

    156 Greenbank et al 2008 IJQS 4.

    I understand that practising what I am suggesting would be no mean feat, as law schools have vastly varying resources at their disposal, students' academic preparedness for such a module will vary, and it will take years to successfully restructure the degree programme in order to ensure that skills training is incorporated into the syllabus and assessment of each module within the LLB curriculum. But it is imperative that the challenge be embraced, since it is the only way to effectively teach legal writing and research skills. Law teachers must be brought to realise that the benefits for the student outweigh the perceived challenges by far.

  • 6 Conclusion
  • It is the law graduates themselves who pride themselves in being awarded a well-deserved degree from a respected institution after being subjected to a rigorous test of their learning outcomes, and who carry that "badge" (the degree certificate) with them throughout their careers.155

    Where no sound pedagogical rationale for the presentation of a dissertation module exists, outdated values, methodologies and aims render the dissertation anachronistic.156 In this contribution I argue that the inclusion of a compulsory dissertation module in the final year of the LLB degree, which

    demands that the student complete a research project in line with the theory of transformative constitutionalism, is a pedagogically sound approach to consider when reviewing the LLB degree programme. This dissertation module should demand of students that they complete a dissertation, at least 8,000 words in length, and should illustrate the achievement of other related competencies through a series of additional alternative assessments.157

    157 See para 4.1 above.

    158 Smith "Curricular Structures for Cumulative Learning" 85.

    159 Fourie 2016 PELJ 20.

    160 Campbell 2014 Stell LR 27-28; Fourie 2016 PELJ 4.

    161 Smith and Bauling 2013 Stell LR 616 (emphasis as in source).

    162 Quinot 2012 SALJ 417.

    Since the proposed dissertation module would be presented as a capstone course the completed dissertation should illustrate an in-depth understanding of the chosen topic, the ability to synthesise new knowledge with that constructed throughout the degree programme, and an ability to critique law as demanded by transformative constitutionalism. The learning facilitated by a dissertation module would create opportunities for cumulative learning and provide a coherent learning experience for the undergraduate student completing her degree.158 A great number of skills would be acquired throughout the disserting process, the most important of which are those pertaining to autonomous learning, critical thinking, creativity, and legal writing. Metacognition would greatly aid the endeavour to master these skills and the ability to think about one's own thinking and learning would then be carried forward into the student's career as a legal practitioner.

    The only way the student could effectively benefit from the dissertation module to the extent desired from a pedagogical vantage point would be if a willing and able supervisor were to facilitate the student's learning process. The supervisor should become an important mentor for the dissertation student and be in a position to teach her far more than just how to write and do research. The supervisor should entrench the principles of transformative constitutionalism in the student's perception of law.

    TLE demands that the agenda of South African law, namely transformative constitutionalism, be advanced and incorporated into the content and methodology of legal education. This approach necessitates a focus on social responsibility,159 social justice,160 and the endeavour of "teaching for transformation".161 The South African law teacher should align her teaching with a pedagogy which embodies justification instead of authority.162 The three foundational aspects of TLE, namely a focus on the transformative

    constitutional framework, adopting a constructivist approach to teaching and learning, and embracing the opportunities created by ICT and its relationship to law would all be incorporated in the dissertation module I propose in this contribution. The dissertation and the manner in which it is presented could have immense value for the student and instil an ethical approach to law in LLB graduates.

    This approach to presenting a dissertation module would not be without its challenges, but the majority of these could be overcome by a faculty of law teachers who are excited about teaching law responsibly, and who are willing to work together to make that happen.

    Developing the correct educational environment in which students are encouraged to undertake dissertation work, is as much the individual teacher's concern for innovation in teaching methods as that of the overall course structure.163

    163 Watson 1983 Improv Coll Univ Teach 185.

    164 Greenbank et al 2008 IJQS 14-15.

    165 Dunlap 2005 Educ Technol Res Dev 77.

    166 Will 1978 Antioch Rev 361.

    The dissertation writing process is an endeavour in independent study and tests the student's ability to educate herself.164 Graduates are successful if they have confidence in their ability to perform, and a dissertation module can develop this confidence.165 If law teachers see the opportunity to build meaningful relationships with the students they supervise as a privilege and not a burden, great strides will be made.

    Will166 argues that "continuity is mechanical and lifeless" and that it should not be the dissertation student's goal to adhere to the inherited status quo. A discipline's past, present and future, and the inevitable relationship between these may be effectively illustrated to a dissertation student if the module is presented creatively. The potential value of a dissertation module, presented as expounded in this contribution, could be of great value to the student in the final year of her LLB degree programme. This module could impart the graduateness attributes demanded by South African society, whilst developing a host of crucial skills. The vital first step in the process of developing and implementing such a module would be to convince law teachers of their constitutional duty in this regard.

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    List of Abbreviations

    ALHE

    Active Learning in Higher Education

    ALT-J

    Association for Learning Technology Journal

    Antioch Rev

    The Antioch Review

    Assess Eval High Educ

    Assessment and Evaluation in Higher Education

    CHE

    Council on Higher Education

    EJPE

    European Journal of Psychology of Education

    Educ Technol Res Dev

    Educational Technology Research and Development

    HER

    Higher Education in Review

    ICT

    Information and communications technology

    IJQS

    The International Journal for Quality and Standards

    Improv Coll Univ Teach

    Improving College and University Teaching

    JGE

    Journal of General Education

    JJS

    Journal for Juridical Science

    J Legal Educ

    Journal of Legal Education

    LLB

    Bachelor of Laws (Legum Baccalaureus)

    PELJ

    Potchefstroom Electronic Law Journal

    PSLR

    Pretoria Student Law Review

    SAJHR

    South African Journal on Human Rights

    SALJ

    South African Law Journal

    SAPL

    SA Public Law

    Stell LR

    Stellenbosch Law Review

    TLE

    Transformative Legal Education

    TSAR

    Tydskrif vir die Suid-Afrikaanse Reg

    UFS

    University of the Free State

    UK

    United Kingdom

    WITS

    University of the Witwatersrand

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