Evaluating the Jurisprudencial Approach to the Social Studies Author(s): Donald W. Oliver and James P.

Shaver Source: The High School Journal, Vol. 46, No. 2 (Nov., 1962), pp. 53-63 Published by: University of North Carolina Press Stable URL: http://www.jstor.org/stable/40366449 . Accessed: 23/09/2011 12:06
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Evaluating the Jurisprudential Approach to the Social Studies

Donald W. Oliver and JamesP. Shaver
Graduate School of Education, Harvard University

EFLECTIVE MORALITY is the termused by Dewey to indiJ) an -*-Vcate intellectualprocessby which men in a democraticsociety might deal with and resolve political and social problems. to In anotherarticle,1 called our own efforts teach such a procwe the ess of reflection "jurisprudential" approach to instruction.We would focus upon a series curriculum statedthat a jurisprudential of related questions: 1. What is an adequate descriptionof the objective situation or whichcauses an ethical controversy dispute? situation so pressing 2. To what extent is the controversial use its coercive power the government can justifiably that of to restrict personal libertyin the interests the community? 3. To what extent do the rightswe wish to restrict law by have Constitutional guarantees? within 4. To what extent do specificchecks and restrictions the American Constitutionalsystemadequately reduce or restrict governmental power? unreasonably certain we In a jurisprudential approach to instruction, suggested, conceptsand their application should be taught. These included:
1. Concepts which describe the basic values of American society,as well as the consent systemdesigned to maintain and support these values. These include such values as personal freedomand personal privacy (e.g. speech, conscience, contract and property), equal opportunity, equal protection under law, peace and order,a concern for the general welfareand progress of the community,and concern for the welfare of each individual, i.e., brotherhoodand charity.2 2. Concepts related to the intellectual process by which ethical and empirical handled. These concepts would include disputes can be more intelligently
1 Donald W. Oliver. "Educating Citizens for Responsible Individualism, 1960-1980." In Franklin Patterson (ed.), Citizenship and a Free Society: Education for the Future. Washington, D. 0.: National Council for the Social Studies, 30th Yearbook, 1960, Chapter 11. 3 See, for example, Gunnar Myrdal on the American Creed in, An American Dilemma. New York: Harper & Brothers, 1944.

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the distinctionbetween definitional,empirical, and normative problems as well as the proof process by which problems can best be handled.3 3. Concepts from the social sciences which give the person a more adequate means of describing and handling descriptionsof social phenomena, e.g., "culture" and "social class."

We must confessthat there is nothingvery new in these objectives. They are commonlydescribed and espoused under the or term"critical"or "reflective" thinking the "problemsapproach." The worksof Dewey and Tufts,4Raup et al.,5 and Hunt and Metand reincalf6 are each landmarksin social education clarifying on this point of view. We have done two things, however, forcing which we should like to comment. We have developed a two year curriculum specificallydesigned to teach ^'reflective morality." (We realize that most curricula have as one of their aims the teaching of "critical thinking." However, this outcome is usually of anticipatedas a by-product some more centralobjective,such as to Americanhistory.") Second,we have attempted trans"teaching into specific late the objectivesof jurisprudential learning teaching more precisely.It outcomeswhich can be describedand identified that we shall describe brieflyin this paper. is this latter effort Before doing so, however,we should clarifytwo points. First,we an make no pretensethat these outcomesconstitute exhaustiveinor skills. Second, theyare of reflective thinkingconcepts ventory outcomesin the sensethat not generalcriticalor reflective thinking to any content; we are concernedonly with their aptheyapply in propriateness teachingstudentshow to deal with political conof within the framework the Westernpolitical tradition. troversy Operational Objectivesof a Jurisprudential Social Studies Curriculum A studentshould be able to:
l.Deal at with political controversy a general analytic level and relate his analysis to specific issues and concrete cases. For example, in a case involving the arrest of a sidewalk orator, the students should see that certain general values are involved, e.g. freedom of speech, the peace and safety of the community,and the property rights of nearby shoppers.

Method.(2nd ed.) New York: Prentice-Hall, Scientific 1952; M. R. Cohenand Ernest Nagel. An Introduction to Logic and ScientificMethod. New York: Har court, Brace & and Language. New Haven: Yale University Ethics Co., 1934; and, C. L. Stevenson. Press, 1944. * JohnDeweyand JamesH. Tufts.Ethics.New York H. Holt & Co.: 1908. : 5 R. B. Raup, Q. E. Axtelle, D. Benne,and B. O. Smith.The Improvement K. of Practical Intelligence. New York: Harper & Brothers. 1950. a MauriceP. Hunt and LawrenceE. Metcalf.Teaching High School Social Studies. New York: Harper & Brothers, 1955.

8 See, for example: Max Black. Critical Thinking: An Introduction to Logic and

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the shouldsee a If the oratoris said to be creating disturbance, student definithat the term"disturbance" a relatively is vague one whichcreates about thespeechcausing tionalproblems. shouldsee thatthe assertion He a disturbance Thinkingabout a particular greater specification. requires and "freespeech" "disturbance" of case in terms such issuesas defining to we think, allowsthestudent deal withthe case at twolevels:he identifiesgeneralproblems inherent this kind of case, and then places the in of factsof thiscase within context thesemoregeneralproblems. the two or morevalues,empirical and between inconsistencies conflicts 2. Identify or statements, difinitions. an betweenvalues by identifying and 3. Deal with inconsistencies conflicts valuesare preor of situations whichthe inconsistent conflicting in array in or sented in varying degreesof favorableness unfavorableness order to delineateat what point he should supportone value as againstthe other. For example, mightsupportfreespeechover peace and order we howWe might if the only dangerinvolved was a sidewalkdisturbance. riots or an ever,reverseour positionif such speecheswere inflaming insurrection. betweenempiricalstatements and 4. Deal with inconsistencies conflicts by evidenceto supportthe statements. and evaluating specific seeking evidence use or 5. Deal withthe inconsistent ambiguous of wordsby seeking how the wordsare mostcommonly used, or how the concepts concerning described. whichthe wordslabel maybe mostaccurately to between thosefactual 6. Distinguish claimswhichare relevant the centra] and value issues in a controversy those claims which bear little or no to relationship thevalue.

with which these operationsare stated The level of specificity makes the problemof assessinga student'sability above, we think, than assessingwhether not or to perform any of themless difficult a studenthas learned to use some general processcalled "critical thinking"or "problem solving." Even with generalityand amremain. many problemsof measurement biguityreduced,however, The Assessment Learning Outcomes of these learning We have tried a numberof ways of translating outcomesinto measurableunits. All startat the same point. We ask the student to read and analyze, either by himselfor in a case. In political situation-a controversial group, a controversial in one approach, we then give the studentspecificstatements the or eitherin written oral form,and ask him what funcargument, the tion they serve. Do theyfor example, transform case into a more general problem,or continue to deal with it as an isolated instanceof personal conflict?A second approach is to take stateand ask the studentto rebut them. mentsmade in the argument, This can be done either with open-ended questions,or by pre-

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sentingseries of fiveor six rebutsfromwhich he is to choose the best and/or the worst. The approach we have found the most promising,however, is the systematic made in analysis and categorizationof statements oral discussions. Some advantages to this approach are obvious. The oral discussionis a morenaturalsituationin whichto ascertain the analytical skills of the student. (How many studentswrite about political questions after they leave school?) The oral discussion also provides the studentwith less structure than objective tests. In criticalthinkingtestsof the lattertype, pencil-and-paper for example, the student is commonlypresentedwith a message, parts of which are abstractedfor analysis. He is then asked to deal only with these parts in his response,which is already restrictedby a multiple choice set. The student thus has a very narrowrange of behaviorwithinwhichhe can choose. In the open discussion,however,he mustselectrelevantparts of the controversial case and the ensuingdiscussionwith which to deal. He is thus forcedto select froma much broaderrange of alternative responses which he must create forhimself. contentanalysisis, ofcourse, This last "advantage" of systematic Because there is such a wide range of also its greatestdifficulty. alternativeresponses which the student can make, all types of responsesmust be anticipatedso that they can be evaluated and scored. Instead of a simple key to a test,the scorerfindshimself with a long and complex manual in which hundreds of typesof responsesmay be described and classified. Because of this complexity,scoringis difficult, requiringa long trainingperiod. Furthermore scoringprocessitself less reliable. the is As an example of the systematic contentanalysisapproach,we should like to presenta set of categories have workedout and we used to evaluate the student's to handle controversial ability political issues. Synopsis of a Content AnalysisSystemfor Scoring the Student's Abilityto Analyze and Resolve Political Controversy. discussion Althoughthe following mayseem somewhattechnical, the reader should understand that because content analysis attemptsto deal with "free communication/' many problemsoccur which are simplyavoided in a pre-structured test. Nor can we deal here with all the problemsof an approach to the evaluation of reflective based on contentanalysis. It is hoped, however, thinking

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that we might communicateboth the advantages as well as the of complexities this approach in the shortspace available. as Systematic analysis of interaction, we use the methodology, involves analyzingongoing interactioninto discreteunits which in considerations are then categorized.There are threeimportant out this categorization: carrying (1) Into what size units will the total train of interactionbe broken? of (2) What is the frameof reference the scorer? (3) What is the specificnature of the categoriesused to describe the interaction? units can range in size fromentiremeetingsor Theoretically, of discussionsto particularsegments the discussionwhich may be or denned in termsof time, a completed verbal interchange, acto some linguisticconvention. We have denned our unit cording this is most commonly as a single item of thought. Linguistically, a simple or complex sentenceor the independentclauses of compound sentences. There are, however, some exceptions to this whichbringus back to the moregeneralrule of a single convention whichis to be itemof thought.For example,if a case is presented to the original case under discussion,it is scored as a compared single unit even though it may consistof several sentences. Also, sources of evidence, although they are embedded in simple senare tences, scoredseparately. ("The New York Times reportedthat federaltroopswere used to restoreorder at CentralHigh School," would be scoredas two units.) In determining the frameof referenceto the scorer a major is consideration how much of the discussion the observershould a take into account in classifying particularact. Since our system uses two scoringsystems superimposedon each other,it also uses two contexts:one forwhat we call staticcategories;the other for dynamiccategories.The dynamicsystem(see Chart 1) consistsof which require the scorerto deal with a contextbeyond categories the statement being categorized. This may include one or several other sentences. Scoring in these categoriesis determinedby relationshipsamong statements.The static categories (see Chart 2) can theoretically be scored without taking into account any contextbeyondthe scorable unit. Everyunit of behavioris scored in a static category. Dynamic operationsare scored only when they

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are identified.Thus, when a dynamicoperationis scored,a double of categorization the same unit occurs. between There are some exceptions, to however, this distinction static and dynamic categories. The category"relevance,"for exbut it is scored as if it were static ample, is a dynamiccategory, because the assertionor questioningof relevance usually contains an obvious cue within the statementitself,and because there is no staticcategory scoredwithit. whichcan be appropriately Posture of the Speaker to "Posture" refers the attitudeof the speaker towardthe statement he is making. Put another way, posture indicates the funcfor is tion which that statement performing the speaker. We have identifiedand used four postures: declarative statements;interwhich question or express doubt rogative statements;statements about a prior statement (often in either the declarativeor interbut with an overtoneof argumentative intent);and, rogativeform, which expressself-doubt(as, for example, uncertainty statements as to the validityof a claim whichhas been or is going to be made by the speaker). The postureof thespeakeris scoredwitha symbol within the space provided on a scoringsheet for the appropriate staticcategory. Orientationof the Speaker to the Discussion: AnalysisversusPersuasion We also distinguishand score whetheror not the speaker is tryingto persuade other group membersthat his position in the or to he argumentis correct, whether is attempting stay "outside" the argumentand simply analyze how the group might construe the issues in the case. For example, "That person should not have been allowed to speak because avoiding a riot is more important than his right to speak," is scored as persuasive. The statement, "The problemhere is that the principlesof freedomof speechand peace and order are both involved in the situation and we must decide which value should be given greater weight in this instance," is scored an analytical. to in Initially,of course,using the system categorizestatements a discussionresultsin an abstractcognitivedescriptionof the discussion. This rescription must be translatedinto a quantitative

and Validity Reliability

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score by determiningwhich categories seem valuable from the point of view of our objectives,and then counting the frequency with which the units are scoredin thesecategories.This selection a of valued categoriesis essentially question of validity. Thus far the system but to have not only intuitiveor face validity, appears it also reflects effect increasedtrainingin reflective the of thinking. We plan to carryout proceduresby which validitycan be more we however. Presently, feel that the following established, firmly categorieshave value for a discussioninvolving political controversy.
Static Categories: General Value Judgments and General Legal Claims are valued because they allow the student to deal with the controversialcase at a more abstract and general level. SpecificFactual Claims and Sources are valued because they are most commonly used to support more general claims. They are most often associated with the empirical proof process. Definitional Claims are valued because they tend to be used to give greater precision to the various positions in the argument. Clarificationis not valued, since it involves mainly statementswhich repeat something already said. When the student clarifies by drawing finer distinctionsbetween positions or terms in the argument,it is scored as a Definitional Claim. Case is valued because, by definition,it is an attempt to expose the point at which an individual will reverse his position, given an array of similar situations to judge. It is essentiallypart of a definingoperation. Relevance is valued because it indicates that the student is attempting to deal with the relationship between a particular statement and some larger facet of the total argument. Dynamic Categories: For obvious reasons, all three dynamic categories are valued. They have been selected for scoring preciselybecause we think they are important. Orientation to Discussion: The analytic orientation to the discussion is valued because it tends to indicate that the student is attempting to stand back from the immediate persuasive aspects of the argument and provide a more impartial framework by which to deal with the controversy.

It should be noted that these valued acts are not simply a product of a priori guessingabout what acts operate to produce the most intelligentdiscussion. In arrivingat our presentposiand done a good deal of tion,we have listenedto manydiscussions to with cuttingand fitting make our quantitativescoresconsistent our intuitive about what behavior is actuallyvaluable. judgments

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Although validity is based mainly on the casual subjective judgwork to establish ments of scorers, have done more systematic we whetheror not the subleties of language can be reliably scored with these gross categories. Reliabilitywas a concernat two levels. Initially,as part of the training procedure, agreement among observersconcerning the was checked by a graphic method.7 categorizationof statements as reached an acceptable level of agreement establishedby Having between observerson this method, we turned to the agreement the total number of valued acts which should be creditedto each student. The degreeof associationwas estimated using the productmomentcorrelation. Four personswere trainedto use our system. Each was paired with everyother scorer,so that six scoringcomscored by each combinationsresulted. The numberof interviews from10 to 18. The resultsare shownin the upper binationranged half of Table 1. There is no widelyaccepted criterionfor the acas as ceptance of such coefficients satisfactory; Heyns and Zander8 out, whetherone demands a correlationof .70 or .90 is conpoint tingentupon the uses to which the observationalscores are to be
Table System 1- Reliability Estimates* for Four Observers Using the Category D A B C A .55 .87 .82 .69 .48 .93 B .68 .69 .78 C .64 D .72 .62 * Coefficients the upper half of the matrixare for product-moment correlations; in in the lowerhalf,for rank ordercorrelations.

7 Binomialprobability and J. W. Tuckey Hosteller by paper as developed Frederick and reported "The Uses and Usefulness BinomialProbability of Paper." American in, of StatisticalAssociation Journal,1949, 44, 174-212. For a statement its application Mass. ProcessAnalysis.Cambridge to systematic see observation, R. F. Bales,Interaction Addison-Wesley Press. 1951, pp. 111-112. 8 R. W. Heynsand A. F. Zander,"Observation GroupBehavior."In L. Festenger of in and B. Katz, ResearchMethods the Behavioral Sciences. New York: DrydenPress, 1953, p. 411. 9 See, for example, for JamesP. Shaver. "EducationalResearchand Instruction CriticalThinking."Social Education. (In press)

put. As we are not now reportingour systemwithin a specific to it researchcontext, seemssufficient point thatwith the exception all of one coefficient approach at least .70, with two greaterthan .80, and one greaterthan .90, and thatis, on the average,a relatively high level of agreement. Because teachers are often increased in ranking studentsfor such as we are reporting purposesof gradingand a set of categories here mightwell be an appropriateevaluation device for a teacher concerned with "jurisprudential"objectives,9it was decided to

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corwith the rank-order estimatethe agreementamong observers relation. These resultsare shown in the lower half of Table 1. as While thesecorrelations are not as striking those in the upper indicatea high degreeof agreement half of the table, theycertainly among rankingsbased on the scoresobtained by the various pairs corof scores. It should also be kept in mind that the rank-order relation indicates only relationships between ranks, while the correlationis an indication of the relationship product-moment the between scores. One might also note that if in determining scores were grouped into large level of agreementamong scorers, as i.e., categories is actually done by teachersin gradingstudentsbe would undoubtedly higher. of A, B, C, D, E- estimates reliability Conclusion of The translation theobjectivesof thejurisprudential approach outcomeswhich can be measuredwith a set into specific learning we such as describedin this article presents, believe, of categories for curricularevaluation. Because learning unusual possibilities than outcomescan then be measuredin a situationless structured testa and approachingmuch more closelythe cirpaper-and-pencil in cumstances which the desiredconceptswill later be applied, the evaluationof educational objectivestakes on greatermeaning and validity. Our reliabilitydata suggest the feasibilityof this apand both in experimentation classroomteachproach to assessment It should be noted, too, that just as a teachermightduring ing. any one period of time teach foronly one or a fewof the concepts to includedin the category so mightthe set be modified include set, in order to simplify fewercategories scoring. for of There is no denyingthe impracticability the system the day to day needs of the average classroom. Teachers, in general, have neitherthe researchcompetencenor the time to learn and the use such a complexsystem.Ultimately, however, more complex instrument mightbe used to establishthe validityof simplercatetests. There is little or gory systems, even of pencil-and-paper which doubt in our minds that presentmethodsof measurement with a seriesof to assess the processof reflective thinking attempt respectfor the multiple choice itemsshow insufficient fragmented subtletyand complexityof this competence. It is our conviction to will becomemoresignificant teachers thatmeasurement programs and researchpeople when evaluation begins with a recognitionof

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to the complexityof the phenomena theyare attempting describe and assess.

CHART l-DYNAMIC CATEGORIES Statements that indicate explicitly or implicitly CONFLICT-CONSISTENCY: that the speaker is aware of a real or possible inconsistencywithin his own or another speaker's position. and GENERALIZATION: SPECIFICATION Specification occurs when the a specificstatementto illustrate or support a more general speaker gives statement. Generalization occurs when the speaker draws a more general conclusion from one or more specificstatementsalready given. Example of specification: "Desegregation is not going well. Only 7% of the Negro children in the South are now going to integratedschools after seven years of illegal segregation." The second sentence would be scored as the static operation "specificclaim" and the dynamic operation "specification." Example of a generalization: "After World War II, Russia captured the countries of eastern Europe, helped China to become a Communistnation, and tried its best to take over Greece and Turkey. Russia is the greatest empirialistic nation the world has ever known." Statement two would be scored as a static operation "general claim," and a dynamic operation "generalization." QUALIFYING: A statement which deals with an implicit or explicit inconsistencyor conflictby pointing out under what general circumstancesan exception to a general principle is allowable or possible we score as a qualifying act. Example: Mr. A: Our civil liberties are our most precious asset. To try and restrictthem for any citizen is un-American. Mr. B: If you had been in Germany in the early 1930's, would you have restrictedsome of the civil liberties granted Hitler when he was conducting mass hate meetings. Mr. A: I very well might have. I would say that civil liberties which should be restricted, however,only when the government is pledged to protect them is in real danger from an undemocratic and brutal force, which would destroy all civil liberties. Mr. A's modified position would be scored as static operation "general value judgment," and dynamic operation "qualification." CHART 2-STATIC CATEGORIES

GENERAL VALUE JUDGMENTS: Statementsin which the speaker expresses a preferencefor a person, object or position in the argument in termsof a general social or legal value, such as: personal privacy,property, contract, speech, religion,general welfareof the group, equality, justice, brotherhood, due process,consent and representation."Mr. Kohler certainlyshould have the right to run his property and to make contracts with his workers without union interference." SPECIFIC VALUE JUDGMENTS: Statementsin which the speaker expresses a preferencefor a person, object or position in the argument in termsof

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the specificcase under discussion. "I think Mr. Kohler should have met the demands of the United Auto Workers." GENERAL LEGAL CLAIM: Statements in which the speaker asserts that someone has a legal right to do something,expressed in termsof a general legal principle, such as: rule of law, due process, equal protection under the law, constitutional restraints,etc. "He has a right to a fair trial under the United States Constitution." SPECIFIC LEGAL CLAIM: Statements in which the speaker asserts that someone has a legal right to do something,but does not give a legal principle as a basis for the right. "Mr. Kohler has a right to fire any workerhe wants." GENERAL FACTUAL CLAIMS: Causal, descriptive,or predictive generalizations. "Negroes are just as intelligent as whites." SPECIFIC FACTUAL CLAIMS: Statements describing specific events delineated in time and space. "The firstattempt at integrationin Little Rock was on September 4, 1957." SOURCE: A statementor part of a statementdescribingthe source on which a claim, definitionor value judgment is based. "Emergencyis defined this way in Webster'sNew International Dictionary." DEFINITIONAL CLAIM: A statementabout how a word or phrase is defined or should be defined. It is also a statementof analysis by which several meanings of a single word might be distinguished. "An emergencyoccurs when one or more people are in danger of being injured or losing their lives and property." A statement in which the speaker communicates someCLARIFICATION: thing already stated in order to focus the discussion. It may include simple repetition,in that saying somethingagain may emphasize or clarify a person's position. CASE: A set of statementswhich describes specificreal or hypotheticalsituations analogous to the one under discussion. Its main purpose is to elaborate the range of situations to which one might apply a value judgment. "Suppose Negroes and whites were given schools of equal quality, teachersof equal quality, books and educational facilitiesof equal quality: Would Negro schools still be inferiorto white schools?" RELEVANCE: A statement which explicitly deals with the way a statement or group of statementsis related to the total argument. "I don't see what that statementhas to do with the discussion." DEBATE STRATEGY: Ad hominem or other remarks which explicitly discuss the tactics being used by the opponent. "You're just tryingto confuse me." A statementdirected at controlling the TASK PROBLEM: PROCEDURAL: immediate interpersonalsituation, and which assumes that everyonein the discussion is tryingto do a conscientiousjob. "Let's take a vote." "Let's give everyonea chance to talk." A statement directed at conTASK PROBLEM: DEVIANCE CONTROL: trolling the immediate interpersonal situation, and assuming that one or more people are violating group norms. "Get back in your seat and sit down." "You don't have to shout."