Financial law and regulation as a social science and the implications for teaching and learning

Teaching and learning financial law and regulation

There are three dividing lines that make teaching and learning in my area  less effective: first, the division into sub-disciplines; second, the dichotomy between, on the one hand, the world of practical application of legal rules (often called ‘black-letter law’) and, on the other hand, the sphere where law and its context are critically analysed and reflected; and, third, the purely domestic view on law which ignores the internationality of the subject matter.

First, like other disciplines, law is divided into different sub-disciplines, such as commercial, private, criminal and public law, conflict of laws, human rights, or regulation. These sub-disciplines are traditionally taught and studied as separate, relatively unconnected subjects, and faculty is often considered belonging to either one or the other of them. Still, law can be taught and learned on the basis of a context-oriented approach which unites two or more of the sub-disciplines. ‘Art law’, for instance, would comprise all relevant aspects pertaining to art and the art market, drawn from various of the afore-mentioned sub-disciplines. It is probably fair to say that under the current curricula in England and overseas context-oriented legal education are rare and are at best taught at the more advanced stage of the curriculum. Financial law and financial regulation is such a context-oriented area of law, too. Here, commercial law meets with regulation, conflict-of-laws, public law and even human rights. Hence, it does not sit easily with the traditional categorisation in which students and teachers are used to think.

A second characteristic of legal education, which also applies to my subject, relates to the dichotomy of practice and critical thinking: whereas legal rules are created in all areas of life with a view to providing the world with a practical governance framework, the relevant rationales, concepts and resulting policies underlying these rules are the product of more than two thousand years of critical thinking. In that sense, law is a ‘hard’ and a ‘soft field’ of learning (Smeby, 1996, 69-70), with communication-based on either a codified language or a literary language (Smeby, 1996, 71). The former one, the black-letter law, concentrates on how to apply the law correctly to real-world scenarios and is often associated with the view that law is about the accumulation of information to serve an external demand (see Trigwell et al, 1999, 57-59). The latter requires a constant analysis and evaluation of information gathered from different types of sources, questioning in an abstract way (Duron et al, 2006, 160) rationales and concepts of law. While this difference is hardly noted outside the academic sphere law teachers and law students make implicit or explicit choices on whether they should be leaning more towards the hard side of law (the extreme example are courses preparing for the bar), or whether they put the emphasis more on critical reflection of law (the extreme case being legal philosophy).

The third specificity of teaching and learning financial law is that the widely practised teaching and learning within the hard sphere of law (as just described) typically leads to a view of law limited to jurisdictional boundaries. Law is different from maths, medicine or music: the various jurisdictions’ laws are conceptually and substantially different and incompatible. Amongst those areas of law taught at university, only a few have a universal character or consider how different jurisdictions’ laws function together. This is unfortunate not only because the educational value of cross-comparison of different bodies of laws is not activated. Also, a purely domestic view on law does not reflect the economic and social realities of an increasingly globalised world. Lastly, and probably most importantly for universities like the LSE, foreign students typically perceive teaching focused on the law of the university’s jurisdiction as less valuable for their future development and hence tend to engage in a more superficial way, leading to more superficial learning (regarding the distinction between deep and superficial learning see Trigwell, 1999, 67).

Implications for our teaching

Early on in my career, I was charged with convening and teaching two LLM courses, one on financial regulation, and one on financial law. Both fitted to some extent with the picture drawn above, ie they were two conceptually separated, compartmented, largely rule-based and English-law focussed courses.

For some time now I have been working on dismantling the discipline-specific characteristics as described above,  or at least their adverse effects on learning have been largely absorbed. This effect is a consequence of the introduction of two overarching threshold concepts into the course,

Threshold concepts

First, the antagonistic ideas of commercial risk (as a consequence of speculation) and liquidity (as a consequence of highly speculative markets) were introduced as threshold concepts. They are now guiding through both courses, allowing students to access the substance in a way so far unknown (see Meyer and Land, 2003, 1).

First, using risk and liquidity as linchpins enables us to overcome the traditional way of learning law in sub-disciplines. The inefficiencies associated with this rather formalistic approach are thereby entirely avoided. Students learn to naturally link commercial law with regulatory considerations, and financial activity with the consequential societal dangers.

Second, the introduction of threshold concepts facilitates adopting a student-focused teaching strategy (see Trigwell, 1999, 61 – this matter will be further addressed in the second part in a separate blog post). This approach leads away from considering law from its ‘hard’ or ‘black-letter’ side and allows students to develop further their ability of critical and conceptual thinking (Duron, 2006, 161) in an area they had so far perceived as an impenetrable thicket of largely unconnected norms and decisions.

Third, as the threshold concept is a universal phenomenon its use is instrumental in overcoming legal thinking within jurisdictional boundaries. As a consequence, comparative analysis can contribute to the process of learning. The reality of globalised law becomes an integral part of the learning experience. And, lastly, international students gain an understanding that can be potentially translated into any jurisdiction, hence greatly increasing their engagement with the substance because they appreciate the value of learning for their future development.

(slightly edited on 23 September 2017)