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PAUL O'SHEA[*]
Teaching law has become a complicated business. No longer can legal academics 'stand and deliver' lectures which simply elaborate common law doctrine or statute based principles with the occasional update of 'recent developments'. The teaching of all areas of law, from constitutional to property, from crime to electronic commerce law, should now include some appreciation of the theoretical assumptions and critique of those assumptions; of the 'values' inherent in the law being' taught; and how an ethical and 'value rich' approach to law will influence the application of the substantive legal principles. Law students are interested in and demand knowledge of the practical effects of such application.
I argue for the formal integration of 'values' and 'ethics' into the teaching of all the core 'black letter' subjects (contract, crime, torts etc). Some argue that teaching theory this way is 'too hard' because it involves the dilution of 'substantive' law. I respond by suggesting that most legal academics incorporate their: own values into their subjects without acknowledgement. I also argue that practical legal training (PLT) courses should be taught in law schools and not in stand-alone institutions. This step is necessary to avoid producing legal mechanics or, as Professor Peter Birks called them, 'half-lawyers'.
It was not always clear that law degrees, as we now know them, should be offered by universities at all. Civil law and Roman law were traditional subjects for the academy, but law as practised in the courts was not taught in English universities until the mid-nineteenth century. As the late Professor Peter Birks once said: 'The common law ... apart from reports and statutes, for centuries had no books at all...'[1] When they did write books, with the outstanding exceptions of Coke and Blackstone, they were not scholarly treatises (as were more common in the civilian systems on the continent) but more like practitioner's guides.[2]
Academic lawyers and other non-judicial jurists were perceived as having no role in the development of the common law. As Birks said: 'Many practitioners, though not the very best, would have said even then (the late 1980s) that their reading could safely stop with the cases and the statutes'. This is clearly no longer the case. The modem practitioner, often blissfully unaware of an historically more restrictive approach, accepts as a matter of course the importance of the established academic works in their particular field of practice. Academic juristic literature is now a major part of what constitutes 'the law' which is made by both 'judge and jurist'.[3]
The 'non-academic' or even 'anti-intellectual' ethos was reflected in legal education, such as it was. The training of solicitors was conducted by the profession itself along the lines of a guild style apprenticeship. A long period of articles of clerkship accompanied by part-time study through courses offered by professional bodies was the passage for those who sought admission to the solicitor's branch. Barristers also rarely studied law at university, preferring classics, literature, history or even science. Civil law and Roman law were taught at Oxford and Cambridge but were not required for admission. The training of barristers was conducted by the Inns of Court which required a period of pupillage under a senior barrister and attendance at dinners during which the pupils discussed cases with their seniors and 'benchers' of their inn who determined when they were to be 'called to the bar'.
Now it is accepted that the basic qualification for all types of lawyer is a law degree offered by a university. This development coincides historically with the concentration of the academic juristic function within universities. By researching, analysing and criticising the law as it develops, academics are participating in the development of the law as much as judges. Some of this 'non-judge juristic' work is done by law reform commissions and some by a small number of 'practitioner-jurists'. However, as Birks said:
It is a fact that universities exist to promote the highest levels of learning and it is the universities that therefore fund the time needed for research. Also, research and teaching flourish hand in hand.[4]
Indeed, legal academics, if given the time and resources for research, can perform the juristic function in a different, and equally valuable way, to judges who must, by necessity, account for the case in front of them, write their judgment and move on. The time for reflection, for wide-ranging research and for discursive dialogue with colleagues both in person and in print, is one of the chief ways the academy adds value to the process of developing the law.
The historical coincidence between the growth of the influence of university based academic jurists and the acceptance of a university law degree as a requirement for practice as a lawyer is fortuitous. It facilitates, but unfortunately does not always ensure, the better integration of theory and ethics into the training of new lawyers.
So we, have law students in universities being taught by academic jurists. What should they be taught and how?-When I call for the integration of theory and ethics, I am using the word 'theory' in a highly generic and non-prescriptive sense. It can mean interpretive legal theory, legal positivism, law and economics, critical legal theory, whether Marxist, feminist or otherwise and other approaches which examine law in context, including its empirical impacts. By ethics I mean more than simply learning a set of rules promulgated by a professional body or summarised in a leading text. Understanding ethics properly requires some appreciation of the relationships between ethical rules and their philosophical underpinnings and, perhaps, considering values such as those embodied in theories of social justice.
This issue has been the subject of arguments since Blackstone's time. The great commentator argued for both a competent knowledge of the law of that society in which we live' as part of a general education and against confining the education of lawyers to the law as written or established. An advocate must be educated so that he can comprehend and form himself 'arguments drawn a priori from the spirit of the law and the natural foundations of justice'.[5]
Professor Hepple observes that despite the popularity of Blackstone's Commentaries, Blackstone's vision of university as 'provider of both a civilised education and a foundation for professional practice was not realised'.[6] In 1846, the Select Committee on Legal Education in the U! complained bitterly that by concentrating on the 'practical and mechanical' and discouraging the 'higher and doctrinal' parts of the profession, English legal education was producing 'technical lawyers unfit for judicial office’.[7] The case for an integrated approach to the study of law in England was put again and again by prominent academics and by committees and commissions of inquiry.[8] These 'cries in the wilderness' were largely ignored. Hepple asserts that there was a 'powerful ideological basis for the split between the academic and the professional' and that the contrary view was 'not widely shared either in the profession or in the academic world'.[9]
Interestingly, this was never seen as quite the same problem in the United States or Australia where, as Weisbrot explains,[10] law degrees were taught in universities relatively early in the life of their developing legal professions. Bottomley and Parker observe, in the case of Australia, that this was more a function of the absence of a long-established profession which could conduct its own training than the result of a university initiated commitment to academic legal education.[11]
This orthodoxy is, thankfully, under severe attack in Australia and in the United Kingdom. The Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC) in its First Report suggests that:
all stages of legal education and training should aim to achieve intellectual integrity and independence of mind, knowledge of the general principles, nature and development of law and of the analytical and conceptual skills required by lawyers, an appreciation of the law's social, economic, philosophical, moral and cultural contexts, as well as a commitment to legal values.[12]
Hepple, himself a member of ACLEC, argues that, to achieve these goals, students should be encouraged to examine legal problems from multiple perspectives, including:
• traditional legal argument using deductive reasoning from the premises of statutes and precedents
• social, economic and political methods in order to understand policy issues
• a comparative approach which considers other systems, in particular, the civil law
• theory or philosophy
• ethical values.[13]
Without commenting on causal influences, these UK developments have been mirrored in Australia. Le Brun and Johnstone say that, in Australia, there is now a 'shifting paradigm in legal education' that encompasses perspectives other than traditional legal doctrinal argument and scholarship.[14] Samford and Wood, commenting on the Pierce Report[15] note that it calls on law schools to 'look afresh at the theoretical dimensions of law' and that this exhortation is 'not made by educational radicals out of the mainstream'.[16] The Australian Law Reform Commission first suggested in 1997 that ethics should be incorporated into all law subjects whether a separate 'ethics' course is offered or not.[17] The integration of ethics into legal education now appears to be widely accepted, at least in theory. Yet, implementation still poses some challenges.
When confronted with calls for the integration of perspectives other than traditional legal positivist doctrinal analysis into the teaching of a 'black letter' law subject, many legal academics reply that it is 'too hard'. They say that there are already too many topics to be covered in the various areas of law required by the Priestley 11.[18] The existing body of material, cases, statutes and leading texts is so voluminous and complicated that to 'add on' these other perspectives is practically impossible. It will strain the resources of both student and teacher.
Hepple admits that his assessment of the implications of the ACLEC report are 'counsels of perfection'.[19] Not every course or every problem studied can incorporate every one of the five perspectives identified above. He is also calling for increasing the length of law degree and compares the standard English three-year undergraduate law degree unfavourably with its European and American counterparts.[20] Australia already benefits from four-year law degrees and greater opportunities for more expansive study and integration of law studies with other disciplines such as arts, business, economics and science. The vast majority of law students indeed take combined degrees.
The challenge for Australian legal academics each semester is not so much the overall structure of degrees and programs but the content of their courses and how they teach them. I suggest two responses to the cry that integration of theory, values, ethics and other considerations into the study of black letter law subjects is 'too hard'.
First, we should not surrender to the 'tyranny of coverage'.[21] There is a temptation to include every possible permutation of an area of practice in a course and to, therefore, commit the class to addressing them all in lectures and even assessment. This 'defensive' strategy is similar to that adopted by solicitors selecting documents for a brief to counsel. The most popular tactic is to exercise very little judgment about what to include and 'put in the lot' for fear of being accused of negligently leaving something out.
Increased competition between law schools contributes to such 'defensive' course planning lest some critic accuse one's course of having ignored some 'essential' element or topic within a subject area. 'Cross-credit' assessments between institutions are often the only time an academic will study their competitors' comparative courses. A 'coverage' approach, based on the course outline or study guide is the easy way to make such assessments but leads to the assumption that 'more is always better than less'. By focusing on the essential elements of a subject students may well acquire a deeper understanding which will assist them to comprehend more quickly the other aspects of an area of practice even when little formal course contact time is devoted to them. Further, such a 'drilling down' to the essentials will allow for more critical discussion, more contextualising and more consideration of ethical and even practical considerations.
Second, and somewhat less controversially, I suggest that most legal academics already colour their doctrinal teaching with some political, social and economic content if only to put the law in context. Very few would not alert students to the potential ethical pitfalls that are presented by the area of practice under study, if not in lectures then when discussing problems in small groups. Almost none would discuss a statute without some reference to its antecedents and the politics that led to its passage. It is almost impossible, I suggest, to discuss High Court decisions with multiple judgments without explaining to students some of the different theoretical perspectives of the judges. Of course, all teachers of law also have a theoretical perspective whether they acknowledge it or not.
One of the pressures of the 'pedagogicalism' which is building in Australian law schools[22] is the production of substantial documentation in the form of course profiles or outlines, study guides and other materials, websites, quizzes, tutorial questions and answer guides, most of which is made available at the beginning of the semester. Without adding substantially to what is actually taught, course coordinators can make a start towards more formal integration of theoretical and contextual analysis in their courses by simply acknowledging in such documents that which they do already.
This acknowledgement will be more intellectually honest, will better highlight the students' perspectives which they may have taken for granted, and will undoubtedly stimulate the conscientious academic to consider carefully what they say in this context. Rather than being merely diverting 'asides', theoretical and ethical considerations will be part of the course material. This may prompt research to more thoroughly substantiate such comments. This may put pressure on the already busy academic but not so much, it is suggested, as the development of an entire new course built around a new theoretical and critical approach.
Blackstone had only scorn for the 'manual labour of copying the trash of an office' and feared that if this formed too great a part of the training of lawyers then the profession would not attract 'gentlemen of distinction or learning' and 'the interpretation and enforcement of the laws (which include the entire disposal of our properties liberties and lives) fall wholly into the hands of obscure or illiterate men'.[23] Whether they subscribed to Blackstone's quaint elitism or not, universities for centuries paid scant regard to skillsbased practical legal education leaving this mostly to the professional bodies.
Birks too lamented this 'neglect' and the practice of 'sending our people off to places which delivered a dead and universally despised vocational year. The independence of mind which they had cultivated at the university was then stamped out of them.' In his view, the 'division between the academic and the vocational stage' of a lawyer's education is 'pernicious' and institutionalises the 'evils of splitting up teaching and research'.[24] Thus, Birks regarded this division as, in part, responsible for the dearth of scholarship and research in the area of civil procedure. To this example I might add the difficulties inherent in teaching legal ethics in universities. Until one practises the taking of
instructions from a difficult client one has only a dry and sterile, understanding of a lawyer's potentially conflicting ethical obligations to that client, to their employers and to the court. In this way, something as prosaic as interviewing skills will, necessarily, give rise to ethical issues. As Hyams, Campbell and Evans say: 'Teaching skills, whether integrated with substantive law or not, is a value-laden endeavour'.[25]
While for Birks the ideal is full integration of practical legal training into the university degree, the 'next best' solution is for practical legal training to be conducted by research-oriented university law schools as an adjunct program to their other courses. Not all of them do so.[26] Practical legal training courses should be conducted by university law schools for reasons of practical convenience as well as principle, and each reason of convenience matches a more compelling, in my view, reason of principle.
Some students will be able to coordinate the final year of their law degree, be it traditional undergraduate or the increasingly popular postgraduate version, with their practicaI component. This already happens informally at some institutions, with others offering a structured course program along these lines.[27]
Whilst students' motivation may be to nush to qualification and paid employment sooner, the ancillary effect is that they will be learning practical applications of their newly acquired legal knowledge more contemporaneously. The coincidence of both kinds of learning both reinforces and stimulates critical learning.
There are also economies of scale for staff and library resources for an existing university law school to offer a practical legal training program. More importantly, the 'cross fertilisation' of staff between the practical program and the law degree course will enrich both. The exposure of practical legal training teachers to the research culture of a law school, its library, seminar program, publication inducements and encouragement will enhance their professional development and what they can pass on to their students.
Effective practical training is usually more resource intensive than general legal education and, therefore, more expensive for each student. Yet, currently, non fee paying undergraduate law students are more heavily subsidised by the Commonwealth than students in practical legal training courses, university-based or not. Both groups can access some assisted loan scheme, formerly HECS or PELS (soon to be known as FEE HELP), but only if the course is offered in a university.
In the short term, therefore, practical legal training at a university poses a more cost-effective option for most students.
No adverse inference about the quality and dedication of the staff at the 'stand alone' colleges of law and institutes should be drawn from this article. Its purpose is not to criticise a particular course or college but rather to argue that a 'best practice' approach integrates practice training with doctrinal and theoretical education. Institutional integration is the necessary first step towards this goal.
We must avoid the production of lawyers whose sole concern is the mechanical processing of documents, whether litigious or not, as a means of making a living. These are the 'half-lawyers' which Professor Birks so greatly feared. Australian law schools already working hard at better integration of theory, ethics, law degrees. The aim of this article was to suggest some small ways to facilitate this work.
More importantly, the continued existence of practical legal education courses within university law schools is not only practically useful, it will produce better lawyers and better law schools. This will enhance the contribution which university law schools make to the development of the law and a just society.
REFERENCES
[*] PAUL O'SHEA teaches law at the University of Queensland.
The author acknowledges Professor Ross Grantham of the TC Beirne School of Law and the anonymous reviewer in the preparation of this article. All research, analysis, conclusions and opinions are the sole responsibility of the author.
© 2004 Paul O'Shea
[1] P Birks, 'The Academic and the Practitioner' (Twenty-First FA Mann Lecture, Lincoln's Inn, 26 November 1997) 3.
[2] C Cook, R Creyke, R Geddes, I Holloway, Laying Down the Law (2nd ed, 2001) 29-30.
[3] Birks, above n 1, 4
[4] Birks, above n 1, 4.
[5] W Blackstone, Commentaries on the Laws of England (14th ed, 1803), 6.
[6] B Hepple, 'The Renewal of the Liberal Law Degree' (1996) 55 Cambridge Law Journal 470, 471
[7] lbid 473.
[8] For a history of such exhortations over the years, see Hepple, ibid, 473--5
[9] lbid 475.
[10] D Weisbrot, Taking skills seriously: Reforming Australian Legal Education' (2004) 29 Alternative Law Journal 266. Weisbrot notes that the emancipated convict tumed merchant, Samuel Terry posessed the only copy of Blackstone's Commentaries in NSW and that he 'cornered the market on legal knowledge'. I might add he also became the richest man ever in Australian history Rubinstein W, The All-Time Australian 200 Rich List (2000),
as extracted in The Courier-MaiI (Brisbane), 25 October 2004, 11.
[11] 5 Bottomley and 5 Parker, Law in Context (2nd ed, 1997) 4.
[12] ACLEC First Report on Legal Education and Training, April 1997, para 24
[13] Hepple, above n 6, 482-4
[14] M Le Brun and R Johnstone, The Quiet Revolution (1994) 26
[15] Commonwealth Tertiary Education Commission, Australian Law Schools A Discipline Assessment for the Commonwealth Tertiary Education Commission, May 1987.
[16] C Samford and D Wood "Theoretical Dimensions" of Legal Education -A Response to the Pearce Report' (1988) 62 Australian Law Journal 32, 32-3.
[17] Australian Law Reform Commission, Review of the Adversarial System of Litigation, Issues Paper 21 (1997) [519]; on other substantial recommendations, see also Weisbrot, above n 10.
[18] Law Council of Australia, Blueprint for the Structure of the Legal Profession (1994).
[19] Hepple, above n 6, 484.
[20] lbid 485 (many English universities are now offering four year law degrees).
[21] I borrow this phrase from my colleague Professor Ross Grantham of the TC Beirne School of Law, University of Queensland.
[22] By 'pedagogicalism', I mean the concentration on university teaching as a learning process. For a more detailed discussion of its development and consequences in law schools, see N James, The Good Law Teacher The Propagation" of Pedagogicalism in Australian Legal Education' [2004] UNSWLawJl 7; (2004) 27 University of New South Wales Law Journal 147
[23] Blackstone. above n 5, 32.
[24] Birks, above r 1, 18.
[25] R Hyams, S Campbell and A Evans, Practical Legal Skills (2nd ed, 2004) 5.
[26] Seven Australian university law schools conduct practical legal training courses with four others being more or less 'independent' of universities; see Council of Australian Law Deans (ed), Studying Law in Australia (2005, forthcoming)
[27] Such as University of Queensland <www.law.uq.edu au/pleat> and University of Newcastle <wvvw newcastle edu.au/ schoolo/law/centres/general.htm> both at 4 November 2004
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