Paper reflecting on the recent decades and on the future of legal education and digital technologies.

1. Paul Maharg
http://paulmaharg.com/slides
‘Dynamic conservatism’:
second modernity and the digital
revolution in legal education

2. preview
1.Dynamic conservatism
2.Second modernity and legal education
3.The caesura
4.Case-study: SIMPLE 1.0 > D-project
5.What is to be done?
‘There is no spoon […] There is simply the question of governance in the relations
among users of a class of software platforms that have certain degrees of
freedom in their design, resulting in a variety of social affordances, and therefore
facilitating a variety of social and economic interactions’
Benkler 2006, 180
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Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA

3. 1. Dynamic conservatism

4. Schön’s concept …
‘”dynamic conservatism”’ – ‘a tendency to fight to remain the same’ (Schön
1973, 30):
‘A learning system… must be one in which dynamic conservatism
operates at such a level and in such a way as to permit change of state
without intolerable threat to the essential functions the system fulfils
for the self. Our systems need to maintain their identity, and their
ability to support the self-identity of those who belong to them, but
they must at the same time be capable of transforming themselves.’
(Schon 1973, 57, my emphasis)
Schön’s concept describes how we avoid difficult questions where a key
issue is changing identity.
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA

5. … describes how we avoid difficult questions...
‘What have always been regarded as separate systems of
learning services – registry services, archival services, library
functions, learning interfaces – still largely remain so in the
LMS, and the key opportunity for change, organisationally and
technically, is lost. Indeed, Jos Boys argued back in 2002 that
“the [LMS] portal approach is taking hold precisely because it
enables institutions to avoid difficult questions about how they
organise themselves.”’
Bloxham, McKellar, Maharg 2007, our emphases.
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA

6. ... where a key issue is changing identity
Eg:
1. Latour’s analysis of Pasteur’s methods of anthrax vaccination
dissemination
2. Ilya Prigogine’s irreversibility of systems
3. Gregory Bateson’s systems thinking, complexity thinking
4. Sydney Dekker’s distinction between complicated entities
(‘understandable and describable in principle’) and complex entities:
‘Jet airliners become complex systems when they are deployed in a
nominally regulated world with cultural diversity, receiver-oriented
versus transmitter-oriented communication expectations, different
hierarchical gradients in a cockpit and multiple levels of politeness
differentiation […], effects of fatigue, procedural drift […], varied
training and language standards […], as well as cross-cultural
differences in risk perceptions, attitudes and behaviour […]. This is
where complicated systems become complex because they are opened
up to influences that lie way beyond engineering specifications and
reliability predictions.’
Dekker 2011, 942.
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA

7. complexity : dynamic conservatism
• In complex systems there is no clear ‘relationship between
component behaviour and system-level outcomes’.
• In complexity theory claims that the isolation of a single narrative
as a truth-narrative is impossible.
• Research into both failure and success requires to piece together
multiple perspectives in a complex system.
• Multiple narratives in complex systems will be repetitious, rarely
coherent, sometimes contradictory.
• Narrative pluralism and diversity is not a fault: it gives us ‘more
opportunities for learning’
Dekker 2011, 950
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8. effect of regulatory dynamic conservatism
‘When seeking clarity by reducing complexity, then, regulatory
monitoring may focus on individual components (eg objects such
as technologies, or human errors or achievements) without
seeing the complex social, cognitive, epistemological and
organisational whole that gives rise to the situation. Sometimes,
too, the regulatory focus on control, compliance and
quantification of risk can narrow parties’ range of vision about
systems, and induce indulgence on the part of regulators, or loss
of innovation edge and complaisance or superficial self-analysis
on the part of the regulated.’
Dekker & Pitzer, 2016.
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9. 2. Second modernity and legal education

10. second modernity
Ulrich Beck’s concept:
‘The concept of the second modernity is necessarily an open one. We
can’t describe it in terms of a closed arrangement of institutions. We can
only describe it as a process of transformation of the first modernity.
Since modernity was always a dynamic system of continual change, what
we are thus describing is a change in the coordinates of change. […] The
goal and direction of this change is completely non-determinate [...] It
can’t be interpreted as a simple process of transformation from A to B.
The second modernity is not an evolutionary concept.’
(Beck & Willms 2014, 14)
‘Like Beck and his group I have a strong feeling that the more we go on,
the less we read about incontrovertible, bounded, mastered, black-boxed,
expert-ruled innovations.’
(Latour 2003, 43)
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA

11. Beck & educations
'Reflexive modernization is the attempt to regain a voice and thus
the ability to act, the attempt to regain reality in view of
developments that are the consequences of the successes of
modernization. These developments call the concepts and formulas
of classical industrial society fundamentally into question from the
inside, not from crisis, disintegration, revolution or conspiracy, but
from the repercussions of very ordinary ‘progress’ on its own
foundations.’
(Beck 1995, 15; see also Beck, Giddens, Lasch 1994)
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA
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12. 3. The caesura
Hige sceal þē heardra,
mōd sceal þē māre,
/ heorte þē cēnre,
/ þē ūre mægen lȳtlað.

13. :
dynamism : conservatism
second : modernity
legal : education
education (knowledge) : education (skills)
attitudes : values
education : technology
theory : practice
complicated : complex
behaviourism : constructivism
technocracy : democracy
open : for-profit
conventional curriculum design : innovative curriculum design
Caesura gives meaning, but is a stop that isn’t always helpful…
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA

14. 4. Case study: SIMPLE 1.0 > D-project

15. SIMPLE project aims, 2006-08
• See http://simplecommunity.org
• The design and implementation of an online professional
learning environment that can be used in a wide variety of
professions within HE and FE
• The educational, organisational and management issues that
arise from the large-scale implementation of this environment, in
particular those of:
– social presence, collaborative learning and the emergence of
learning
– use of simulation spaces in a complex organisation, and the
relation between simulation spaces and other learning
spaces on a course, including paper-based and online
resources, face-to-face classes, other teaching and course
administration
– authenticity in the design of simulation tasks, and effective
assessment of professional learning
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA

16. SIMPLE outputs
• An open-source, free at point of use suite of applications
comprising server application and client tools which will
populate and manage content of the virtual town, define and
manage the transactions, and configure the professional
workspace user interface
• A project evaluation report
• Detailed documentation of the design and implementation of
the transactional learning, to include:
– User manual, developer manual, source-code and functional
specifications
– Use cases and scenarios
– Simulation task designs, including characters, roles,
documents, document variables, document tracking tools,
– Discussion reports and interviews with learners, staff and
administrators.
Gould et al 2008.
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA

17. transactional learning
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA
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Transactional learning:
active learning
through performance in authentic transactions
involving reflection in & on learning,
deep collaborative learning, and
holistic or process learning,
with relevant professional assessment
that includes ethical standards
(Maharg 2007; Barton, McKellar, Maharg 2007; Maharg 2014, Maharg 2017)

18. example of a sim narrative planner

19. document workspace

20. effects?
SIMPLE successful short term in at least six centres, but:
• No long-term development strategy
• Little community strategy
• Technocratic approach: consultation with stakeholders, but
largely a plan that built software, bolted-on community later.
• More than academic buy-in is needed for community
• We needed to link to other ’shadow pedagogies’, eg sim clients,
PBL, Community of Inquiry learning
• Demonstrate support for hegemonic pedagogies that support our
approach to legal education
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA
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21. the D-project• SIMPLE + distributed structure
• Lite case management + sim engine capabilities more sophisticated than
SIMPLE
• Comms module capable of gamification
• APIs to LMSs
• Community built from start, with ‘shared space’ practices
• Community use linked to publication at all levels (cf AMEE’s research,
policy, best-evidence papers)
• Interdisciplinary publication
• Convergence of:
– academic & professional practices and critiques
– f2f and digital sims
• Sharing of sim scenarios and documents via a SimShare app
• Freemium model structured with a software developer:
– open-source code available for free
– graduated costs for services, eg hosting, designing, running,
archiving sims
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA

22. 5. What is to be done?

23. what action do we need…?
Nicolai Chernyshevsky, What is to be done? (1863)
Fyodor Dostoevsky, Notes from Underground (1864)
Leo Tolstoy, What is to be done? (1888)
Vladimir Lenin, What is to be done? (1902)
1. We need knowledge, evidence, organization, collective action around our
disciplinary forms of learning that includes plans of action.
2. A constitution for legal education that emphasises the rights and liberties
of students and educators is long overdue. With regulatory pressures
increasing, and pressures upon regulators increasing too, it may be that
now is the time to seek a form of international ius commune for legal
education, one that will encourage democratic innovation and
collaboration in legal education’s second modernity.
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA

24. references…
Barton, K., McKellar, P., Maharg, P. (2007). Authentic fictions: simulation, professionalism and legal learning, Clinical Law Review, 14, 1, 143-
93
Bloxham, S., Maharg, P., McKellar, Pl (2007). Summary report on the UKCLE/BILETA VLE Project. Journal of Information, Law & Technology,
1. Available at: http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2007_1/vle_report/
Beck, U. (1995). The Reinvention of Politics: Rethinking Modernity in the Global Social Order. Translated by Mark Ritter. London, Polity Press
Beck, U., Giddens, A., & Lash, S. (1994). Reflexive Modernization: Politics, Tradition and Aesthetics in the Modern Social Order. Stanford, CA,
Stanford University Press.
Beck, U., Willms, J. (2014). Conversations with Ulrich Beck. Wiley, New York.
Benkler, Y. (2006). There is no spoon, in: Balkin, J.M, Noveck, B.S. The State of Play. Law, Games, and Virtual Worlds, Ex Machina: Law,
Technology, and Society Series, general editors Balkin, J.M., Noveck, B.S. New York, New York University Press. 180-188
Boys, J. (2002), Managed Learning Environments, Joined up Systems and the Problems of Organisational Change. JISC Report. Available at:
http://www.tinyurl.com/2bpofr
Dekker, S. et al. (2011). The complexity of failure: Implications of complexity theory for safety investigations. Safety Science, 49, 939–945.
Dekker, S. & Pitzer, C. (2016). Examining the asymptote in safety progress: a literature review, International Journal of Occupational Safety
and Ergonomics, 22, 57–65
Gould, H., Hughes, M., McKellar, P., Maharg, P., Nicol, E. (2008) SIMulated Professional Learning Environment (SIMPLE). Final Programme
Report. 43,239 words, 93pp.
Latour, B. (2003). Is re-modernization occurring – and if so, how to prove it? A commentary on Ulrich Beck. Theory, Culture & Society, 20, 2,
35-48.
Maharg, P. (2007). Transforming Legal Education: Learning and Teaching the Law in the Early Twenty-First Century, Ashgate Publishing,
Aldershot
Maharg, P. (2014). Death masks and professional masks: community, values and ethics in legal education. Published as Máscaras mortuorias
y máscaras profesionales: comunidad, valores y ética en la educación juridical, in REDU, Revista de Docencia Universitaria, 12,
Vol.12. Número extraordinario.- Monográfico: "La Formación de Graduados en Derecho”. Available at: http://red-
u.net/redu/index.php/REDU/issue/view/76/showToc
Maharg, P. (2017). The Gordian knot: regulatory relationship and legal education. Asian Journal of Legal Education, 4, 2, 79-94.
Schön, D. A. (1973.) Beyond the Stable State. Public and Private Learning in a Changing Society. Harmondsworth, Penguin. Second edition.
Professor Paul Maharg | CC BY-NC-ND 2.5 CANADA

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Email:pmaharg@osgoode.yorku.ca
Web: paulmaharg.com
Slides: paulmaharg.com/slides