Analysing Law | Formative Task 1 | Feedback

What is formative assessment?: formative assessment supports student learning and

enables students to: monitor their progress, identify their own strengths and weaknesses, and
to make action plans for development.

Formative Assessment for Analysing Law

The formative assessment for this module is in the form of a structured formative task that is
set out in the information for tutorials one, two and three.

These are short written exercises that you are required to prepare in advance of your
Analysing Law tutorials. If you are in attendance at your tutorial, it will be assumed that you
have prepared this piece of writing. If you do not prepare these tasks, it will inhibit your
learning. These pieces will not be marked individually. Instead you will receive detailed
feedback in video and written form as to what a 1st, 2:1, 2:2, 3rd and fail answer to these
questions looks like. This will be done in relation to the Leicester Law School marking
criteria so that you can become familiar with the way we mark and what you need to consider
when planning and carrying out assessments. This feedback will be released after each
tutorial cycle (fortnightly).

What is the point of the formative tasks? Why?

The formative tasks are an opportunity to practise your critical and reflective writing skills in
advance of the summative assessment at the end of the module. This is an opportunity to
engage with the ideas and materials that you have been introduced to in a particular unit and
for tutorials 1, 2 and 3.

Spending time on these tasks will prepare you very well for your summative assessment and
the answers that you develop for your formative tasks will be an invaluable resource for you
when it comes to answering the question for the reflective writing piece of your summative
assessment in Analysing Law.

Although the aim of Analysing Law is to develop your own independent critical thinking in
law, this must be done in relation to the materials, literature and bodies of thought that you
have been introduced to on the module. How can you apply and engage the theoretical and
practical tools that you have been introduced to on Analysing Law to look at law differently?
How can you engage with your law degree in a way that reflects everyday experiences and
varied motivations for choosing to study law? How can you apply alternative methodologies
and theoretical tools to engage with law and legal rules from a variety of perspectives? How
can you look at law in a broader societal and theoretical context to ask the question: what
does law do? Why is this important? What does it tell you about law? How can you consider
the claim: there is not ‘one right answer’ in law? The formative tasks provide you with the
space to explore these questions and experiment with alternative approaches to law.

There is no one right answer. The best answers will develop an original engagement with the
materials that you have been given to answer the question. The analysis should be reflective
in nature, requiring you to develop your own critical, independent thinking.
These formative tasks are also an opportunity to practise your referencing of materials in
written course work assessments. The referencing system used in the Law School is the
OSCOLA system and you can find a quick reference guide here:
https://www.law.ox.ac.uk/sites/files/oxlaw/oscola_4th_edn_hart_2012quickreferenceguide.pd
f

Developing my student voice: what is the ‘common sense of the law’?

Formative task: 500 words writing piece to be sent to your Analysing Law tutor.
If you have listened to lectures 1-8 and completed the reading for tutorial 1, you will
know that the answer to this question is contained in those materials. All questions
asked in your formative and summative assessments relate directly to the ideas and
materials that you have been asked to engage with and read on Analysing Law.
Answering this question also relies on your independent, critical thought.

Developing my student voice: what is the ‘common sense of the law’?

What would a marker expect to see in your answer?

Developing my student voice: This part of the task refers to Analysing Law Lecture 3 where
we discussed how you as students can think about developing your student voice. What do
you want to do with the law degree, what kind of lawyer/professional do you want to be? I
included a slide on all of the tutors from this module showing how everyone had developed
their voice in law differently. This part of the question is requiring you to reflect on what you
are doing on this module and encouraging you to develop your independent, critical thinking
about law through reference to the materials that you have been given on this module and the
ideas that you have been introduced to. This is the reflective method of all of the work that
you will do on this module.

What we are aiming for in Analysing Law is for you to develop your own opinion through
reading the materials. We are encouraging you to develop your own voice in Analysing Law
and to see law in a wider social and theoretical context. However, you develop your own
voice through reference to different readings and authors and you should be referring to these
to back up and support the development of your own voice. This will demonstrate your
understanding of the various theories and approaches towards law that we are reading and to
law itself. The idea is for you to take these theoretical tools and use them to engage with law
in a way that reflects your own experience and the wider world around you. For example, in
understanding the common sense of the law, it would be expected that you would develop
your reflective writing on this idea through reference to the readings and materials that we
covered in Unit 1 on this: Mansell, Williams, Adebisi, the lecture materials. Each formative
task for each tutorial/unit will refer to the materials that you have covered on that particular
unit.

What is the ‘common sense of the law?’: This relates mostly to lecture 7. The common
sense of law is the idea that we take for granted and accept the law and legal rules largely
without questioning them. The idea that ‘the law is the law’ presents itself as self-evident and
is therefore one of law’s greatest strengths. Is it sufficient to say law must be obeyed because
it is the law? Is the law so obviously right that it is foolish to question it? In the lecture and in
the reading the example of apartheid South Africa was considered in this context.

This questioning of the common sense of the law is a destabilising experience because it
challenges preconceived ideas and notions that you may have about law, society and the
world. This approach enables us to uncover and interrogate the deeper structures and effects
of law, the racialised and gendered logics of law which mean that people do not come to law
equally, despite the claim of formal equality under the rule of law.

People come to law as complex individuals who exist in relation to others – law can’t capture
this. The common sense of law tells us that there is equality in the world and equality before
law. Yet the everyday realities that we witness in immigration centres, the care system, the
workplace, criminal justice system, modern slavery, social housing and homelessness, child
poverty, third world debt, deforestation, the coronavirus pandemic, healthcare, just wars –
show something different. If we accept the common sense of law then we fail to question and
interrogate what law is doing and who disproportionately suffers the effects of the
inequalities of law on racialized, socio-economic and gendered grounds. In developing your
answer to this question students should refer to the materials in lectures 1-8, and the reading
for tutorial 1, Wade Mansell’s A Critical Introduction to Law, Patricia Williams The Alchemy
of Race and Rights, Foluke Adebisi, ‘Decolonisation and the Law School: Initial Thoughts’.
Why is it important to question the common sense of law? How is the common sense of law
achieved through law? Is it through the separation of law from society, which denies the
effects of law and considers law as rules? If we accept the common sense of law as a legal
system that works for everyone we fail to ask questions about access to justice. Who is
included in this common sense – can everyone afford access to the common sense of law?
How much does law cost? Who drew the map of law? Whose common sense are we talking
about when we talk about law?
The common sense of law covers and masks the gendered, racialized assumptions and socio-
economic stratification of the legal system and law by presenting itself as neutral. It is the
cunning of common sense – legal concepts so self-evident why would we question them?
Law’s illusion is to cloak itself in neutrality, whilst perpetuating political and ideological
agendas. Law is therefore a very powerful discourse that seems to exist independently
without question. But it is all the time being constructed as the main tool social organisation
in our rule of law society –our common sense does not in many cases correspond with reality.
Including and excluding on the basis of race and gender, allocating and denying wealth,
maintaining a status quo of inequality.
Law is ‘ideological’: meaning the manner of thinking characteristic of a society, a class or an
individual. This is a difficult point observed by Mansell. The notions of what law might be
and what we might accept them to be are not simply common sense – they are also
ideological. Our common sense of what law is about does not merely reflect the reality that is
law but affects and creates that reality too. Significantly our common sense about what law
is, is not common sense in many other societies (think about the Azande chicken divination
here). The common sense of law appears merely to observe law, but importantly the
common sense of law is also constitutive of that reality. Law in our society is maintained
as it is because of our perception of law, because of our common sense understanding of
law.

Markers of the common sense of the law:

1) Without law there will be disorder and chaos
2) Law seems to be about coercion and force
3) Law is about rules
4) There is intrinsic value in law itself
5) Law is about justice

Students may also talk about the effects of the common sense of law, the cunning of common
sense, the illusion of neutrality, law as ideology. Students may also set out some common
sense terms:
1) Reasonable man/person
2) Contract
3) Property
4) Ownership
5) Equality
6) Human rights
7) Nuisance
8) Family

Demonstrating understanding of the material and skills in your answer

Through these assessments the idea is that you will cover the learning targets that are set by
the ‘intended learning outcomes’ for the module. These ‘intended learning outcomes’ are set
out in the module handbook for Analysing Law so you should be familiar with these from
your reading of the handbook. I have copied them below for your reference in the context of
understanding what kind of thing should be covered in your formative tasks and the
summative assessment.

The question sets out the specific topic and it is very important that you answer the question
being asked in any assessment.

In Analysing Law you have more academic freedom that in your other modules to interpret
the question to develop your own independent thinking through reference to the learning
materials, lectures and readings.

Analysing Law is a space to develop your own critical, independent and reflective thinking
and this should be reflected in the way that you answer your formative and summative
assessments.

Below are the intended learning outcomes, which set out the skills that you should be
demonstrating through answering the formative and summative assessments

Intended Learning Outcomes:

This module is taught at two levels:

Analysing Law module code LW1711 is for 1st year LLB students the Intended Learning
Outcomes for this level are as follows:

 Develop knowledge of and apply orthodox, alternative and critical approaches to

answering the question 'what is law?' including considerations of race, gender and
social class
 Demonstrate practical skills of legal reading, analysis and writing in a law and society
context using case study examples
 Understand the fundamentals of the civil courts and alternative dispute resolution
 Reflect on the role of the law student, the student learning journey and the academic
and practical opportunities of the law degree

Analysing Law Advanced module code LW2711 is for 1st year JD Pathway students and
anyone taking this module in the 2nd year of study. The Intended Learning Outcomes for this
level are as follows:

 Critically understand and apply orthodox, alternative and critical approaches to

answering the question 'what is law?' including considerations of race, gender and
social class
 Initiate and deploy practical skills of legal reading, analysis and writing in a law and
society context using case study examples
 Critically evaluate the fundamentals of the civil courts and alternative dispute
resolution
 Debate and reflect on the role of the law student, the student learning journey and the
academic and practical opportunities of the law degree
 Critically analyse the role of law in society

Assessment Literacy

It is very important that you become familiar with the assessment criteria so that you are
aware of what the marker is looking for when they are marking your work. Below is the
marking criteria of the different classifications: First, 2(1), 2(2), Third, Fail. I have set out
each classification (this information is also at the back of the Analysing Law Handbook). For
each classification I have included a variation on the answer above that would indicate what
an answer for each classification would look like.

Classification: First [72, 75, 78, 82, 85, 88+]

Argument and Identification of Relevant Issues
The submission identifies the relevant issues and answers the question explicitly and
critically with a sophisticated level of clarity and logic; detailed and perceptive analysis;
credit will be given for originality of thought or approach.

Knowledge and understanding

Demonstrates comprehensive knowledge and insightful understanding of relevant principles
and uses this knowledge logically and thoroughly; drawing persuasive conclusions.
Structure
Excellent throughout, with a strong and effective introduction and conclusion; discussion is
organised, balanced and logical and based around clear arguments; points linked and
ordered appropriately.

Research
Demonstrates excellent research skills by full use of recommended reading; refers to
primary sources and secondary sources as appropriate and relevant to the assessment of
the issues; demonstrating knowledge of recent developments, where appropriate.

Writing and Referencing

Demonstrates excellent communication skills in both writing style and presentation; clear,
confident, engaging, logical and persuasive style; near faultless grammar and spelling;
accurate and appropriate use of referencing conventions.

What would a first class answer to the question ‘Developing my student

voice: what is the ‘common sense of the law’?’ look like?

A first class answer to this question will engage from the outset with the concept of student
voice by taking a reflective approach to develop independent, critical thinking about the
concept of the common sense of law through reference to the materials that you have been
given on this module and the ideas that you have been introduced to. A first class-answer will
demonstrate some originality of thought in developing your own ideas in conversation with
the learning materials and readings. The standard will be excellent and the understanding of
the material will be comprehensive. A first-class answer will demonstrate an understanding
of what the question is asking you to do. This will in turn indicate to the marker a high level
of engagement with the materials.

A first-class answer will develop your own opinion through reading the materials. In relation
to answering this question on the common sense of law a first class answer will engage in a
sophisticated manner with the ideas presented in the learning materials from Wade Mansell,1
Foluke Adebisi2 and Patricia Williams.3 You develop your own voice through reference to
different readings and authors and you should be referring to these to back up and support the
development of your own voice. This will demonstrate a high level of understanding and
engagement with this literature. The ability to apply these ideas to the notion of the common
sense of law and the markers of common sense of the law from lecture 7 and engage in an
analysis of law to show what these authors have to say about the common sense of law is
important for a first-class mark. This must be done with clarity and communicated effectively
to the marker. A first class answer will integrate theoretical analysis with everyday examples.

In understanding the common sense of the law, a first-class answer will develop a detailed
and perceptive analysis of the common sense of law and might refer to Patricia Williams’
notion of the High Objectivity of the law, Foluke Adebisi’s discussion of what happens when

1
Wade Mansell, A Critical Introduction to Law (Routledge, 4th edn, 2015).
2
Foluke Adebisi, ‘Decolonisation and the Law School: Initial Thoughts’, (22 July 2019)
<https://folukeafrica.com/decolonisation-the-law-school-initial-thoughts/> accessed 15 November 2020
3
Patricia J. Williams, The Alchemy of Race and Rights: diary of a law professor (Harvard University Press, 1991).
we fail to question the common sense of the law in the context of decolonising the law school
and Wade Mansell’s analysis of law as an ideology, the idea that law constructs reality: our
common sense of what law is about does not merely reflect the reality that is law but affects
and creates that reality too. Significantly our common sense about what law is, is not
common sense in many other societies. Common sense of law appears merely to observe law,
but it is also constitutive of that reality. A first class answer will ask and explore question
such as whose common sense are we referring to in law? What does the common sense of
law hide? Who is disproportionately affected by the common sense of law? Why is it
important to question the common sense of law? How is the common sense of law achieved
through law? A first class answer will recognize that asking and answering these questions is
a destabilising experience because it challenges preconceived ideas and notions that you may
have about law, society and the world. A first class answer will consider how the common
sense of law considers law to be separate from society and what the consequences of this
assumption are.
A first-class answer will address the relevant points from the ‘what would a marker expect to
see’ section above but will do so in an analytically sophisticated way. It will refer to wider
literature. It will make it clear to the marker that the person writing has understood and
engaged with the material. The answer will be well-structured, well-referenced, well-written
and convincingly argued.

Classification: 2(1) [62,65,68]

Argument and Identification of Relevant Issues
The submission identifies the relevant legal issues and answers the question with a very
good level of clarity and logic; very good analysis. At the lower end of the range, points will
not have been explored fully while minor aspects may be missing.

Knowledge and understanding

Demonstrates very good knowledge and understanding of the relevant principles; uses this
knowledge logically and thoroughly; some of the subtleties may have been missed when
considering the more complex issues.

Structure
Very good throughout with a very good introduction and conclusion; discussion is organised,
balanced and logical.

Research
Demonstrates very good research skills by use of most of the recommended reading;
reference to primary and secondary sources as appropriate and relevant to the assessment
of the issues.

Writing and Referencing

Demonstrates very good communication skills in both writing style and presentation;
employs a clear, logical and on occasion persuasive style; makes occasional typographical,
grammatical or referencing error.
What would a 2(1) answer to the question ‘Developing my student
voice: what is the ‘common sense of the law’?’ look like?
A 2(1) answer to the question will demonstrate a very good understanding of the task that you
have been asked to complete. A 2(1) answer will engage with the concept of student voice by
developing your own critical, independent thinking in relation to the learning materials and
readings that you have been set on the common sense of law. Although successfully
developing student voice, critical independent thinking and engaging with the materials, the
understanding demonstrated may not be as comprehensive as that demonstrated in a first
class answer. There may be some ideas that have not been explored fully and some of the
subtleties of the different approaches to the common sense of law presented by Wade
Mansell, Foluke Adebisi and Patricia Williams may have been missed and not grasped
comprehensively.

A 2(1) answer will demonstrate a very good engagement with what we mean by the common
sense of the law and may engage in a more substantive way with the materials from lecture 7
where we set out the markers of the common sense of law. The idea that we take for granted
and accept the law and legal rules largely without questioning them. The idea that ‘the law is
the law’ presents itself as self-evident and is therefore one of law’s greatest strengths. Is it
sufficient to say law must be obeyed because it is the law? Is the law so obviously right that it
is foolish to question it? Example of apartheid South Africa. Destabilizing experience
because it challenges preconceived ideas and notions that you may have about law, society
and the world. Enables us to uncover and interrogate the deeper structures and effects of law,
the racialized and gendered logics of law which mean that people do not come to law equally,
despite the claim of formal equality under the rule of law. A 2(1) answer will integrate
theoretical analysis from some of the authors and thinkers we have covered to apply this to
everyday examples of the common sense of law:

Markers of the common sense of the law:

1) Without law there will be disorder and chaos
2) Law seems to be about coercion and force
3) Law is about rules
4) There is intrinsic value in law itself
5) Law is about justice

This analysis will be very good but might not refer to all of the relevant learning materials
and readings. The analysis may be slightly more descriptive than a first class answer and may
miss some of the more nuanced points such as Williams’ High Objectivity of the law,
Mansell’s law as ideology, the idea that law constructs and is constitutive of society and
Adebisi’s decolonial analysis of accepting law as it is without questioning it.

The standard of writing and referencing will be very good throughout. It will be clear to the
marker that the writer has understood and engaged with the materials. The ideas will be
communicated clearly and succinctly to the marker. A 2(1) answer will have demonstrated an
understanding of what is being asked and will have identified all of the relevant issues. The
difference between a 2(1) and a first will be the level of detail and the sophistication of the
analysis. Sophisticated analysis can be achieved through careful reading and really trying to
understand what the aim of the module Analysing Law is.
Classification: 2(2) [52,55,58]
Argument and Identification of Relevant Issues
The submission identifies the relevant issues and answers the question with a competent
level of clarity and logic; reasonable analysis. At the lower end of the range, there may be
more description and issues and/or sources which are less relevant to the answer.

Knowledge and understanding

Demonstrates competent knowledge and understanding of the relevant principles and uses
this knowledge reasonably; there may be gaps and/or minor misunderstandings.

Structure
Reasonable introduction and conclusion that may be too brief or too long; internal sections
may be of varying length, or structure may lack logic or linking; tendency to lack clarity in
presentation of ideas; tending to be information-led and descriptive rather than argument-
led and discursive.

Research
Competent use of sources with perhaps more reliance placed on textbooks than academic
journal or cases or statutes, as appropriate.

Writing and Referencing

Competent writing style and presentation but the submission may contain general and/or
descriptive statements which are not evidenced or balanced; there may be less consistency
or precision with grammar, punctuation, citations and referencing.

What would a 2(2) answer to the question ‘Developing my student

voice: what is the ‘common sense of the law’?’ look like?
A 2(2) answer to this question would be more descriptive than either a first class answer or a
2(1) answer. Whilst a good level of understanding and analysis of the common sense of law
will be demonstrated in a 2(2) answer, an answer in this classification will present some gaps
in the analysis. This will communicate to the marker that some ideas and concepts have not
been understood fully or there is a lack of comprehensive engagement with the learning
materials and readings. An answer in the 2(2) category may develop a strong student voice in
terms of opinion, but this will not be backed up by reference to the literature and authors that
you have been exposed to on Analysing Law. So whilst there may be lots of information in
the answer i.e. the markers of the common sense of law such as:

Markers of the common sense of the law:

1) Without law there will be disorder and chaos
2) Law seems to be about coercion and force
3) Law is about rules
4) There is intrinsic value in law itself
5) Law is about justice
There will not be any analysis of why it is important to identify the common sense of law and
why and how we should go about questioning the common sense of law. Such an approach
and lack of analysis of the idea of the common sense of law will demonstrate to the marker
that there are some misunderstandings and gaps in knowledge. A 2(2) answer will identify
the relevant issues and area to be discussed but will lack the level of detail and clarity of
expression to communicate ideas in a sophisticated manner.

The style will be consistent but may be prone to errors. The referencing may be inconsistent.
A 2(2) answer would not consider the more nuanced points of analysis raised by Mansell,
Adebisi and Williams such as the High Objectivity of law, law as ideology and the
importance of questioning the common sense of law in a decolonial approach to law.

Classification: 3rd [42, 45, 48]

Argument and Identification of Relevant Issues
The submission demonstrates a basic command and synthesis of the relevant issues but
does not answer the question fully or sufficiently analytically; some issues may not be fully
explored and the submission might not have distinguished between relevant/irrelevant
issues and/or sources; limited analysis and significant descriptive content; lacking in
coherence and inconsistently linking content to the question.

Knowledge and Understanding

Basic knowledge and understanding of the relevant principles but gaps in knowledge and
unease with principles, rules and cases (as appropriate); authorities may be lacking; clarity
more limited when using the relevant law or principles.

Structure
Ideas not presented in a clear and logical way; structure mostly information-led; role of
introduction and conclusion not fully grasped.

Research
Basic use of sources with perhaps heavy reliance placed on textbooks rather than journal
articles, cases or statutes as appropriate; limited or lack of evidence of use of recommended
reading.

Writing and Referencing

Basic writing style which would benefit from improvement for clarity, coherence and/or
fluency; sentences may be poorly constructed; citations and references may be omitted or
include significant inaccuracies; insufficient proofreading.

What would a third class answer to the question ‘Developing my

student voice: what is the ‘common sense of the law’?’ look like?
A third class answer to this question will be very descriptive and will suggest a lack of
engagement by the student with the learning materials and readings. It will be clear from this
answer that the student has not understood what is being asked of them for the purposes of
this task. This will also indicate a lack of engagement with the module, lectures, tutorials and
readings. In a third class answer there will be very little reference (if any) to the reading list
and the ideas presented by Mansell, Adebisi and Williams in relation to the common sense of
law.

It will be apparent that the student has not fully understood what the common sense of law
means in the context of Analysing Law. Most of the content in the ‘what would a marker
expect to see’ section will be missed. There will be no reflection or evidence of critical
thinking. A third class answer may give the impression of being rushed and not well-planned
or structured. The thinking may seem inconsistent. Erroneous sources that are not on the
reading list may be cited. There will be very little analysis present in a third class answer. The
style will be basic and referencing may be incomplete. Ideas will not be communicated
clearly to the marker. The answer may be short and will only engage with the question at the
surface-level, lacking in-depth, sophisticated analysis.

Classification: Fail [0, 15, 20, 30, 35, 38]

Argument and Identification of Relevant Issues
The submission does not demonstrate sufficient command of the relevant issues and does
not answer the question substantively; limited or lack of references to the relevant
principles or sources; little or no analysis.

Knowledge and Understanding

Inadequate knowledge and understanding of the relevant principles; authorities are limited
or absent.

Structure
Limited or absent introduction, structure and conclusion; poor presentation of ideas.

Research
Very limited or no evidence of reading.

Writing and Referencing

Unsuitable writing style and referencing; lack of clarity, coherence and / or fluency;
presence of significant grammatical and punctuation errors; citations and references may be
absent or very poorly presented; evidence of lack of proof reading.

What would a fail answer to the question ‘Developing my student voice:

what is the ‘common sense of the law’?’ look like?

A fail answer to this question would demonstrate a complete lack of understanding of the task
and the question being asked. This would be apparent through lack of reference to any of the
learning materials relevant to answering the question on the common sense of law namely
Mansell, Adebisi and Williams. In a fail answer there would be little or no reference to any of
the ideas or explanations covered in lectures and tutorials. There would be a demonstrable
lack of understanding and misunderstanding of the concept of the common sense of the law.
There may be an attempt to answer the question through reference to materials not covered
on the module, but this would further indicate a lack of engagement with the Analysing Law
module overall. There would be little to no analysis present. The content covered in the ‘what
would a marker expect to see’ would not be present in a fail answer. If these ideas were
present, they would be presented with gaps in knowledge and in a way that did not situate the
ideas in the context of the module or in a way that attempted to analyse the ideas. Some
description may be presented in ‘list’ form or bullet points without any understanding of
concepts or analysis being communicated. Writing style and referencing would be unsuitable
for an academic, reflective writing exercise.