Legal Education Research Paper

1. The Establishment Of Organized Legal Education

Legal education began by asking universal questions linking legal rules, morals, and justice. Only much later were these elements separated, and some were discarded altogether. The focus on national legal systems correlates with the rise of nation states and legal professions. Early legalists were certainly not parochial in their outlook and did not draw sharp distinctions between law and morality, nor did they fail to consider the relationship with other professions and disciplines. If one draws a distinction between legal education and training, it could be said that, with the passage of time, the latter has steadily displaced the former. As a result, the boundaries of legal thought have been shrinking and the legal mind has become more introverted and absorbed with technical ephemeral rules rather than fundamental values.

Roman law, canon law, and international law were the focal points of legal study in the medieval universities on the continent of Europe, and these legal sources formed the basis of a common transnational legal language facilitating trade between commercial classes. The English common law was an exception to this trend where the impact of this triad was greatly reduced by the relatively early development of an indigenous and quite sophisticated legal culture insulated from Roman law. Legal education in medieval England was provided by the Inns of Court, which organized apprenticeships involving both shadowing practitioners and practical exercises within a closed, and almost monastic, community. With the advent of printing, legal texts started to supplant, but not to replace, these informal methods of socialization. Organized legal education for solicitors did not commence until Sir William Blackstone started to give his famous lectures on English law at Oxford in the 1750s. It was not until the Victorian era, with visionaries such as John Austin, Jeremy Bentham, and Sir Henry Maine, that university liberal legal education became established at University College London and beyond, including the Council of Legal Education which was set up in 1852 (see Cocks 1983, 1988). In the United States, legal education is generally seen to have begun with the foundation of Harvard Law School in 1817 (Sutherland 1967, Stevens 1983).

2. The Aims Of Legal Education

Throughout the world toward the close of the last century, several national reviews were set up to report on the state of legal education (Ormrod 1971, Arthurs 1984, Pearce 1987, MacCrate 1992, Franken 1995 ACLEC 1996). From these national reviews, it is apparent that legal education has increasingly diverse aims serving concurrently both academic and professional goals. The precise mix balancing scholarship and practice varies between, and within, particular jurisdictions. And even within particular institutions there are heated debates about theory, substance, and method. Scholarly approaches have become pluralistic and fall into a number of subcategories: doctrinal (‘black letter’); sociolegal; contextual; critical; jurisprudential; interdisciplinary (‘law and’); comparative; clinical; and skills-oriented (see Twining 1994). At the most general level almost all would agree that legal education should introduce students to what it means to ‘think like a lawyer’ (Ormrod 1971, p. 102). Law is an intellectual discipline with distinctive concepts, institutions, and methods of reasoning, and a primary responsibility of all law schools is to create, develop, and transmit this ‘core’ knowledge. In England and Wales, as elsewhere, the professional bodies take an active interest in defining this core but their involvement is often resented, or resisted, by the academy which claims jurisdiction over the academic stage. The ACLEC Report sought to balance the interests of various stakeholders by concentrating on articulating an ‘outcome statement’ which specified the broad skills, knowledge, and values law students should possess by the time they graduate without dictating to law teachers precisely how their students should be taught (ACLEC 1996, p. 72).

Interdisciplinary approaches, initially on the periphery of the curriculum, have become increasingly part of the mainstream. Anglo-American legal education has embraced the study of ‘law and society,’ while law schools in continental Europe have often made non-law subjects, such as legal history, economics, philosophy, or sociology, compulsory for undergraduate law students. In the civil law world, legal education continues to be dominated by the study of codes that can be traced back to Roman law. Codes provide the focal point for formal instruction, which tends to discourage or displace critical reflection. Within the common law systems doctrinal analysis still prevails, although it is now generally accepted that law students should also be exposed to ideas about the context of law.

By the time of their graduation, law students are expected to have laid the foundation for a career which is law-related but not necessarily within the legal profession. Although the majority of law students in England and Wales still expect to qualify as either a solicitor or barrister, this is not true in continental Europe, the United States, or Japan, where the emphasis is on producing lawyers who will disperse into a range of occupations in the public and private sectors. Increasingly it is being recognized that law schools not only prepare students for a career in law but also enable people who can handle legal sources to cope with change in a wide variety of working environments, which could be described as the legal services industry. This industry is being transformed by globalization, new technology, and interdisciplinary tendencies common to all modern professions. Legal education continues to teach students how to ‘think like a lawyer,’ but today this thinking requires much more than a passive understanding of primary sources, principles, and concepts. It must include a critical awareness of what is happening outside the world of law. Because so much law has a built-in obsolescence, it is vital that law students possess the skills and confidence to interpret new rules and situations. University legal education must therefore provide a solid foundation for the education taking place at the vocational stage and during continuing professional development, as well as a framework for understanding the uncertainties which lie ahead.

3. Trends In Legal Education

In demographic terms, university legal education has been steadily expanding in most jurisdictions since World War II. This has created a mismatch between the supply of law graduates and their demand from prospective employers, at least from within the legal profession. Today most lawyers are middle class university graduates, though they are no longer necessarily law school graduates, or male, or Caucasian. Methods of delivering legal education are constantly evolving, but a university degree which acts as a qualifying examination recognized by the profession has replaced apprenticeship, which was for centuries the normal entry route to a legal career. Women have become increasingly visible in law schools and the profession, and their presence is challenging traditional male-dominated attitudes toward both the law and legal work. Moreover, it is possible to enter the profession having studied another degree, and indeed some law firms express a clear preference for those with non-law or mixed degrees (Economides 1999, p. 400).

The professions have always sought to control entry, partly to maintain standards and to protect what they see as a finite amount of legal work that can be shared (Abel 1999). On the other hand, because universities (and to some extent government policy) decide who enters law school—and in most countries these have been expanding in both size and number— law students continue to flood the market. In Japan, which produces 40,000 law graduates a year, recent reforms have increased the total number of places on the professional training course to still only around 1,000 places. What some may describe as the overproduction of law graduates who fail to gain full professional qualifications has also brought about new forms of legal service delivery through so-called ‘para-legals.’

The increase in the numbers of those entering law school has not always been matched by a corresponding increase in resources, resulting in adverse staff–student ratios or an imbalance in the social and ethnic composition of the law student population. In order to cope with this expansion in numbers, new teaching methods have evolved, whereby students participate in more independent, active learning, and teachers are under pressure to explore the potential of computer-assisted learning (CAL). Distance-learning in legal education remains uncommon, though is not unknown, and could have significant implications not only for citizens, access to legal education but also for citizen access to legal services more generally. Progress with the notion of community legal education (Cooper and Trubek 1997, p. 233) could be accelerated with increasing access to the Internet and the development of expert systems in law. However, these developments threaten the power base of the legal profession and its exclusive control over legal knowledge and expertise (Susskind 1998).

Law schools tend to deploy a variety of methods to deliver teaching and these are determined by national traditions and available resources. Perhaps as a consequence of increased communication and awareness of different approaches, there is convergence resulting from the exchange of ideas and experimentation. The casebook approach, which was pioneered by Christopher Columbus Langdell at Harvard over a century ago, and the Socratic method in which students are forced to explain the logic of legal argument through a question and answer session conducted in a large classroom, have been exported to other common law countries. Most undergraduate law teaching is delivered through a combination of formal lectures (normally optional) backed up by tutorials, workshops, and/or seminars. Postgraduate legal studies is more library and seminar based. Teaching legal skills has now become an important part of the informal law curriculum in Anglo-American law schools, which have moved beyond mooting (mock trails) to include client-interviewing and clinical approaches sometimes involving live clients. However, the fact that European Union law is now part of the mainstream of the curriculum means that both civilian and common law methodologies are understood by law students throughout Europe (East and West) and European law students can observe the synthesis of these hitherto contrasting legal methodologies in the courts of Luxembourg and Strasbourg.

A further recent trend in legal education common to many modern law schools concerns the revival of interest in the ethics and morality of law. In the United States, the Watergate scandal led to compulsory courses in professional responsibility. In many continental legal systems, deontology is taught, but usually in a highly formal, uncritical manner which does not depart far from the code of professional conduct. For most of the past two centuries positivism has prevailed in the teaching of law, with law students being taught to focus almost exclusively on studying legal rules divorced from their moral, political, or social context. Contextual and critical tendencies in legal scholarship have challenged legal formalism since the 1970s, but most recently there has been an attempt to (re)introduce into the undergraduate curriculum ethical perspectives in order to enrich and deepen the education of law students (Economides 1998). By exposing law students to ethics and values, educators seek to promote a more responsible and less cynical approach to both legal study and practice. Evidence from several jurisdictions in both the common law and civilian legal systems suggests that the modern law school inculcates egotistical cynicism rather than an altruistic sense of public duty or any strong commitment to justice (Cooper and Trubek 1997, 1999, Economides 1998, 1999, Junqueira 1999, Erlanger et al. 1996, Granfield 1992). The need to introduce the teaching of legal ethics arises not only at the initial stage of legal education but is also necessary at other stages of the educational continuum.

4. The Educational Continuum

Legal education should be seen as part of lifelong learning and need not be confined to what happens inside law schools or preparation for legal practice. The fact that law schools are expected to deliver lawyers ready for practice often results in narrow, cramped, and overcrowded curricula with an unhealthy obsession with examination grades. This obsession with grades (which determine entry and status within the job market) arguably undermines the educational experience and substitutes competitiveness for collegiality. It also inhibits intellectual freedom by forcing the law student to memorize rules rather than explore ideas, with the result that legal education tends toward ‘training for hierarchy’ (Kennedy 1982). While the education of lawyers clearly falls into distinct phases, it is perhaps preferable to regard the acquisition of legal skills and knowledge as part of ongoing processes, which are continually refined throughout a legal career, and in this way to reduce some of the pressure and expectations invested in particular rites of passage such as graduation and professional qualification. Ideally each stage should prepare the student for what follows next without being too prescriptive about the content or methods deployed at any particular stage.

4.1 The Initial Stage

Legal education normally commences with an undergraduate degree, though in some countries law may be taught in secondary schools along with instruction in civics or citizenship. In the United States most law schools require graduate entry and this is also the case in India and Pakistan. The undergraduate law degree—in which the foundations of legal knowledge are laid—is thus the normal initial or academic stage of legal education, though most countries permit a measure of flexibility with regard to entry to (and exit from) professional qualification. Postgraduate degrees serve to prepare students for specialist areas of legal work or a career in academic law; students may follow a Masters course or read for a higher degree leading to an MPhil or PhD.

In the Anglo-American system, and in many other countries in the common law world, students are expected to pass examinations in four or five subjects at the end of each year. It is also increasingly common for law schools themselves to be ranked according to their research and teaching quality; such rankings are organized and publicized by government or leading newspapers. The US News and World Report, for example, ranks law schools in the United States; in the United Kingdom, the Higher Education Funding Council (HEFCE) administers the Research Assessment Exercise (RAE). Examinations also feature in many continental European countries, but here the university law degree invariably takes much longer; in Germany, the norm is five years (though this is currently under review) and concludes with a single comprehensive examination (the First State Examination) at the end of those five years. Other European countries combine the system of yearly examinations in each course with a comprehensive examination at the end of the five-year period of study (Lonbay, 1990). The examination system has been accused of producing compartmentalized thinking, in which students are unable to think across subject boundaries; for this reason, it has become common to introduce general topics such as Public Law and Private Law which are spread over two years. Apart from the written examination, most law schools offer students the opportunity to write a long essay or dissertation, sometimes in lieu of a written examination; and continental law schools in Italy and France make use of oral examinations and a thesis to be written in the students’ final year. In English law schools, the oral examination is usually confined to resolving problematic or borderline results, but increasing use is made of various forms of continual assessment. Students can sometimes also gain credit for working on law reviews, but this is quite rare outside the United States.

4.2 The Vocational Stage

In England and Wales lawyers qualify as barristers or solicitors by taking either the Bar Vocational Course (BVC) or the Legal Practice Course (LPC) (see Economides and Smallcombe 1991). Both courses have introduced a new skills element and can now be taken at various franchised institutions including some university law schools. Following the Courts and Legal Services Act 1990, which blurred the distinction between barristers and solicitors by allowing certain of the latter to gain higher courts rights of audience, the arguments in favor of common training for both branches have become much stronger (see ACLEC 1996, Chap. 5). Currently, barristers’ training is focused on the four Inns of Court (Lincoln’s Inn, Inner Temple, Middle Temple, Gray’s Inn) and falls under the jurisdiction of the Senate of the Inns of Court and the Council on Legal Education, while solicitors’ training is governed by the Law Society. University graduates may obtain partial or total exemption from the first part, depending on their degree, provided it satisfies the Joint Announcement on Qualifying Law Degrees. To qualify as a barrister, one must pass the BVC and serve a period of apprenticeship (pupilage) which involves six months in chambers attached to a barrister. The pupil barrister cannot practice unsupervised until s he has been a pupil for one year. A major obstacle for students coming from poorer backgrounds has been finding a place in chambers, but the profession has initiated reforms to assist the fair distribution of the limited training places which become available. To qualify as a solicitor, one must pass the LPC and get a training contract in which one serves an apprenticeship as a trainee solicitor, normally attached to a firm of solicitors, for two years. Scotland and Ireland have similar arrangements, though both jurisdictions have progressed farther with the notion of common training. Judicial training, which usually follows a successful career at the Bar, is now overseen by the Judicial Studies Board, while employed lawyers, for example in the Crown Prosecution Service, are subject to further training in-house. Vocational legal education in recent years has been dominated by the large city firms which have invested heavily in in-house training (and toyed with the idea of setting up their own vocational course provider), while many small firms in the provinces and rural areas, even though willing, have been unable to afford to take on trainee solicitors. Common training exists in the United States in that passing the state bar examination (which do vary) both grants admission to the bar and qualifies one for all categories of legal work.

In civil law countries, specialization takes place following graduation. In Japan, Spain, and France there are special national schools to train judges, entry to which is highly competitive and based on performance in an examination. In Germany and Scandinavia law graduates intending to pursue a judicial career also take further vocational examinations and are then attached to a court while serving a probationary period, at the end of which tenure for life is granted. Those wishing to qualify as lawyers follow training geared to particular forms of legal practice. In France, the choice is between qualifying as an advocate, an avoue, or a notary. In Germany, law graduates wishing to practice follow a program of practical training as a Referendar in diverse legal settings across the public and private sectors at the end of which they must pass the state bar examination (Assessorexamen) (see further Lonbay 1990).

4.3 Continuing Professional Development

Most modern professions prefer lawyers to follow practical courses post-qualification in order to refresh their knowledge of law and keep abreast of new developments, but few have gone so far as to make continuing professional development (CPD) compulsory. In the United States CPD is mandatory in only 16 states; in Australia, only New South Wales requires general mandatory CPD (Nelson 1993). There is no CPD in Austria, Belgium, France, the Nordic countries, Germany, Greece, Ireland, Italy, or Luxembourg, although a compulsory CPD regime has been operative in the Netherlands since 1996 for all Dutch lawyers (ad ocaten). Spain and Portugal have been reviewing CPD and increasing the provision of voluntary courses. In England and Wales both branches of the profession now require CPD (see ACLEC 1997).

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