by Graham Ferris, Nottingham Trent University
Property law generally, and land law in particular, poses a problem for anyone who proposes to teach the subject. The substantive law is fairly complex and not intuitive, and the reasons the law is important are various and not always obvious. The law needs to be complex as third parties are affected by property transactions, and property is necessary for human life. Most land is also in practical terms indestructible, which generates problems of coordination over time. Property law is important because it is a major feature of the rule of law, it can facilitate or obstruct economic success, and its distribution in a society is a major question of distributive justice. Property law needs to be fair as between individuals, but also efficient as a system of law. Sometimes property law throws up disputes in which two innocent parties are in dispute, and the law must decide in a just manner which innocent party suffers loss.
Given enough time we could teach all that is necessary for our students to learn the law, and understand it in a multi-faceted way. One certainty is that the law curriculum is crowded and will not permit the necessary expansion of curricula space for such an expansion of property law. Therefore, we have to decide what to teach, and what to not teach, and this is the key problem of curriculum design – what do we include and what do we omit?
My belief is that the answer to these questions should come from a two-stage process. First, we identify concepts or laws or institutions that we feel are essential to any adequate understanding of the structure of land law or property law. Our first concern must be to the subject matter, discipline, and educational aim of inculcating a competence that over time may grow to be a mastery of the subject area. Second, we need to think about the situation of the learners we are teaching. Our learners can benefit from instruction that enables them to develop their understanding or their personal growth, or both. What benefits their understanding is determined by where their “zone of proximal development” lies – they must be ready to assimilate the information, or it will fall dead on their ears, and be taken in as rote learning. What benefits their growth is determined by their own identity projects, but such issues as justice and fairness and respect are likely to resonate in a young person’s view of the world.
Thus, in selecting for teaching we seek materials that can serve (at least) two ends. The end of exposition and the end of learner self-development (intellectual or personal). Obviously, such alignment is difficult and relies upon a designer who has mastery of the subject and intimate knowledge of the learners. The only people able to undertake that task are legal academics and thus it falls to us to try and craft a property law course that serve the needs of our learners.