Pue, W --- "Educating the Total Jurist?" [2007] LegEdDig 32; (2007) 15(2) Legal Education Digest 38

Educating the Total Jurist?

W Pue

[2007] LegEdDig 32; (2007) 15(2) Legal Education Digest 38

8 J Legal Eth, 2006, pp 208–221

Much contemporary thinking about legal education proceeds on the basis of powerful, though largely unspoken, assumptions that training for a career in law should primarily involve the transmission of technical know-how. In this view education is thought to involve the transmission of a sort of mechanical expertise more or less completely divorced from larger questions of ethics, morality or the lawyer-citizens’ duties within a larger civil society. The educational project comes to be seen quite deliberately as an undertaking to prepare part-only of the jurist: communicating knowledge alone while leaving the development of moral judgment to take place elsewhere. Or, not at all.

It was not always thus. The common lawyers who designed the forms and structures of education we have inherited were obsessed with matters of ethical and moral judgment. A desire to instil a moral sensibility in apprentice lawyers weighed heavily in their thinking about legal education everywhere in the common law world, giving rise to the programmes, schemes, and imaginings that provided templates for contemporary university legal training. With surprising consistency, law teachers have sought to devise pedagogical strategies aimed at constituting or remaking the entire human subject — constructing, as it were, a total jurist. We live in the shadow of their fears that inadequately socialised but legally trained individuals, schooled in law’s techniques but not its values, carry the power to do great damage both to ‘law’ and to the society of which it is part.

Starting, as all common lawyers must, in the United Kingdom, let us consider the evidence of two eminent British lawyers who appeared before Parliamentary committees in the mid-nineteenth century.

C.H. Whitehurst, Q.C., testified before the Inns of Court Commission in his then capacity as Treasurer of the Middle Temple.

Whitehurst’s vision of a well-rounded barrister — the total jurist — was of a man (inevitably) whose role involved more than advising on the state of the law, whose attainments involved something greater than understanding the mechanics and knowing how to pull the levers of the legal system.

An eminent solicitor, Sir George Stephen, expressed a similar professional vision in testimony before the 1846 Committee on legal education:

Solicitors’ work was wide, not ‘narrow’. It was ‘professional’ (involving judgment not mere task completion), and involved ‘confidence’. They worked for ‘gentlemen’ (a word occurring four times in this short passage), on affairs involving ‘sacred matters’, and ‘families’, ‘honour’, ‘character,’ and ‘property’. Much depended on ‘zeal’ but also, it is important to note, on zeal’s counterweight: ‘integrity’. The ‘highest’ class of ‘men’ was affected by the quality and trustworthiness of solicitors.

Nearly seven decades after the 1846 Committee on Legal Education, an eminent British Canadian lawyer articulated a vision of lawyering that overlapped significantly with Sir George Stephen’s. Speaking in 1913 to the Calgary Bar Association, Ira MacKay asserted that: The lawyer’s office is unquestionably the most important office in the community, and that for the obvious reason that the lawyer is really the only man in the community who really makes it his business to understand the delicate and complex organisation of government and law by which the community directs its activities for common ends.

Adopting a stance that recalls Durkheim’s emphasis on the integrative function of professions, McKay asserted that the ‘state itself’ depended on lawyers’ adeptness in navigating these difficult shoals — not just once-off in moments of crisis but everywhere, always. To do this a lawyer had to be knowledgeable about law and legal procedure, to be sure, but also about the values infusing both British law and the civilisation that had spawned it.

As the twentieth century dawned, British Canadian lawyers counted upon law school to contribute to the project of Dominion state formation. The men who created Canadian legal education anew considered a proper understanding of law to be synonymous with a series of underlying knowledges, beliefs, faiths, or understandings regarding economy, public administration, constitutionalism, and corporate behaviour, amongst others.

Australian legal educators, too, reflected the common British consensus that legal education had to involve ethical education and training for citizenship. In 1933, one of the founders of the Law Council of Australia, John G. Latham, developed themes familiar to Canadians, emphasising the virtues of lawyers, their potential for service to the community, and the noble ideals which he thought the profession had always stood for ‘in a British community’.

It is unsurprising that leading Australian legal educators sought to create forms of education consonant with these moral missions (its character as a moral mission nested within Imperialism will be apparent). Hearn, the University of Melbourne’s first Dean of Law, stressed the need to teach students the gentlemanly (though practically useless) subjects of Roman Law and Jurisprudence as a sort of inoculation against the corrupting influence of practice.

In ‘British’ Africa too, similar languages have been employed in ‘visioning’ legal education. Lord Denning, probably the most important English jurist of the twentieth century, spoke on ‘Legal Education in Africa’ in 1961, a time when British decolonisation was well under way. Law, for his Lordship, was not merely about arcane rules, obscure statutes, dusty cases, and procedural knowledge, but also about ‘the spirit of the profession’. This, Denning said, involved ‘frankness, fairness, honesty, courage and the recognition of one’s duty to the Court and client.’ Though it would be absurd to assert that Zambia, Nigeria, Zimbabwe/Rhodesia or South Africa is ‘just like’ Canada or England (as it is nonsense to assert England and Canada are ‘just like’ each other), common themes deserving of fuller exploration do seem to emerge.

What, then, of ‘American’ legal education? Despite its exceptionalist conceits, the United States is a common law country, an offshoot of the British Empire, and a member of the larger cultural community once fondly designated ‘the English-speaking world’. Accordingly, many leading USA figures have held understandings of lawyering and the proper ambit of legal education close to those of their counterparts amongst the ‘home’ British and the Dominions.

C.A. Boston, Chair of the American Bar Association’s Legal Education section expressed the view that the goal of legal education was to educate ‘jurists rather than mere lawyers’. This was necessary because ‘a jurist seeks to conform law to current ideas of moral rectitude, while a lawyer is too prone to perpetrate existing monstrosities of artificial wrong’.

Though history and culture are tricky terrain, most readers will detect an enormous disjunction between views such as these and the ‘feel’ of contemporary legal education. ‘Morality’ at some point went out of fashion, leaving utility as the only credible measure of educational aspiration. The contemporary rhetoric of the legal academy is much more squarely centred on training for success than on ‘education’ for a moral life or even a cultured one. The relative lack of discourses surrounding ethical sensibilities, moral values, or citizen-formation in legal education has, however, been widely noted by common law scholars. Some of that scholarship hints at causation.

Julian Webb, for example, has suggested that ‘“Law” as a discipline has built up a relatively substantial and formally coherent internal epistemology, in which... ethical knowledge has played little part’. Susan Boyd, though hopeful for the future, has puzzled over the corrosive effects of neo-liberalism on Canadian legal education, while Adriane Howe reports that in Australia ‘intellectual restraints’ which are ‘assumed to be imposed by economic rationalism’ produce an impoverished legal education reduced to ‘narrowly defined technicist criteria’. The result, Ian Duncanson says, is a new philistinism, characterised by ‘the conviction that “to be useful, knowledge must be closely related to some commercial activity”... Legal studies conceived “as a critical theoretical enterprise” or as a local form of “critical, creative and curiosity-driven scholarship” no longer has much of a future at a university where “corporately inspired vocationalism” and “excessive technicality” reign supreme’.

Legal education does not, of course, happen in a vacuum. The late twentieth century was characterised by the ascendancy and dominance of a strong ideological current that trashed many of the operating assumptions of the social welfare state and its precursors. It is particularly noteworthy for its unconstrained endorsement of self-interest (something the mainstream liberal tradition never advocated) and for the attempt to divorce both economics and public policy from matters of ethics (again, never contemplated as a serious possibility by nineteenth century liberals or conservatives, for example).

Similarly, philosopher John Ralston Saul has complained that we have allowed the development of ‘a university community that does not teach the elites to rise above self-interest and the narrow view’, the ‘self-interest and the narrow view that comes so easily in a world of professional corporations’. The result, he fears, is that universities are increasingly focused on ‘teaching most people to manage not to think. ... The teaching of transient managerial and technological skills is edging out the basics of learning’.

At least two ruptures are apparent: a rupture in values, and a rupture regarding the importance of values.

The particular values articulated by individuals such as Menzies (Australia), Aikins (Canada), Tucker (USA), Stephens (England) or Denning (for Africa) are not widely appreciated in polite society today. These individuals strike us as elitist, exclusionary, classist, ethnicist, and imperialist. As western culture began to reappraise its working premises, the particular values of earlier generations of professional leaders were widely repudiated (or simply found embarrassing) in the second half of the twentieth century.

This rethinking stopped short of where it should have. Although a reinvigorated and creative discussion of matters of value, morality, and authority might have emerged from the creeping recognition of the great violence perpetrated in the name of hitherto largely unquestioned traditions, the mid-twentieth century took a rather different turn. Its central conceit became belief in the possibility of acting, studying, and teaching in a determinedly value-neutral fashion. Conventional legal educators came to assume — and, more rarely, to articulate — the view that law is a merely technical knowledge or intellectual attainment that can and should be taught without attempting to relate it to thinking about ‘morals’ or ‘values’ or ‘spirits’ — much less souls.

Strong criticisms have been directed at the value choices that are secretly imported into an ostensibly value-free education. Legal education’s hidden curriculum has been said to provide training for hierarchy and indoctrination in so-called ‘neo-liberal’ capitalist values. It is also said to be pervasively infused with very particular understandings of masculinity and femininity, race, and imperialism.

Curiously, some prominent legal educators are hopeful that a return to a more self-aware legal education lies just around the corner. The Faculty of Law at New York University finds redemption of a sort in the challenges and opportunities of ‘globalisation’.

However articulated, the common thread has been a belief in the powerful cultural agency of lawyers and a commitment to shaping their innermost beings so as to produce the sort of professional likely to make positive contributions to the larger community.

Notwithstanding its heritage, contemporary common law legal education accords little importance to anything beyond the most narrowly technical knowledge. The moral mission of educating ‘total jurists’, of thoughtfully contemplating the ways in which legal education (‘value neutral’ or not) constitutes the human subject has given way to other, less self-aware, forms of training. Such, it seems, is what the market demands.

Noting these historical shifts raises obvious questions concerning the lessons to be derived from history. Extraordinarily complex questions of historiography, philosophy, and social theory lurk hereabouts. For the present it suffices to note three ironies. First, forms and structures of legal education that were originally designed specifically so as to produce right-thinking neophyte lawyers have transmogrified into the opposite: technocratic training seemingly calculated to knock the moral stuffing out of anyone. Secondly, irony is to be found in the fact that most critical commentary on the moral silences of legal education to emerge in the English language during the past 30 years or so has originated from disparate positions on the ‘cultural left’. Feminists, critical race theorists, Marxian scholars, and ‘critical legal scholars’, for example, have loomed large. Third, an obvious point bears noting. The ethical agenda of legal education derives its particular textures from the moral currents of the larger society within which legal educators live. Just as the moral compass of western societies is at present dramatically up for grabs, so too is the future of legal education. Which values will be accorded a hearing in the future is as much an open question as is the question of whether legal education will, once again, aspire to educate ‘total jurists’, not merely mechanics of law.

For the present, mainstream law schools are centred on the task of training for a ‘corporately inspired vocationalism’, a sort of professional corollary of ‘Enron professionalism’.

And, whatever the alternatives may be, that gives cause for concern.