Legal Education Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Legal Education Review |
|
DEVELOPMENTS IN LEGAL EDUCATION: BEYOND THE PRIMARY
SCHOOL MODEL
WILLIAM TWINING*
The late nineteen-eighties have been the occasion for a spate of birthday
celebrations in law schools around the Commonwealth. This
reflects the fact that
the nineteen sixties saw an enormous expansion of legal education throughout the
common law world, including
the foundation of many new law schools, some of them
the first in a given jurisdiction, country or region. The age of majority of
a
law school seems almost invariably to be set at either twenty or twenty-five
years. Some institutions have marked their coming
of age by publishing
collections of essays that in different ways reflect on the past with pride or
nostalgia or disillusion. Most
view the future with apprehension, largely
because of the economic crisis that faces higher education in nearly all
countries in
the English speaking world.
Four recent publications exemplify
the mood. The Faculty of Law of the University of Lagos, born in 1961,
celebrated its anniversary
with a collection of essays on Law and Development to
mark the event.1 Dar-es-Salaam, born within weeks of
Lagos, but hardly an identical twin, produced an imaginatively conceived
collection of largely
autobiographical essays poignantly entitled Limits of
Legal Radicalism.2 Two other recent
publications perform similar functions for legal scholarship: the now venerable
Modern Law Review marked its fiftieth birthday with an illuminating
survey of the state of legal scholarship in the common law world; this exhibits
the wry acceptance of lowering of sights by an ageing
radical.3 Finally a relative youngster, the University
of Trento, has published an interesting symposium on Legal Scholarship in
Africa which even more clearly that other documents many of the practical
constraints, political, economic and social, under which contemporary
legal
researchers and scholars operate, especially in the Third
World.4 In their different ways all of these
publications combine reports of significant achievements with a sense of
aspirations not really
fulfilled and a quiet pessimism about the future about
the future. In short, the mood of many institutions on their twenties seems
to
be one middle-aged acceptance of second best.
Nearly all of these documents
have quite understandably adopted the relatively parochial standpoint of
academic lawyers in university
or polytechnic law schools. The central concerns
are with the familiar, but narrow, issues of curriculum, scholarly output and
what
might be called the ideology of legal education ... the much-rehearsed
litany of differing approaches to academic law loosely labelled
“blackletter” or “expository”, “trade
school”, “socio-legal”, “contextual”,
“law
and development”, “clinical”, “skills”,
“critical” and so on.
In this paper I propose to adopt a broader
perspective in two respects: I shall look at some general trends and issues in
the Commonwealth,
that vast and amorphous network of countries that are loosely
linked together by a shared imperial past, by the common law, and perhaps
most
important in the long run, by the English language: I shall interpret legal
education more broody to include not only specialized
education and vocational
training in university, polytechnic and independent professional training
schools, but also a whole range
of activities from law in schools to continuing
education of the judiciary at all levels; from formation of paraprofessionals to
the development and retraining of specialists; and the vast but relatively
neglected subject of legal education for non-lawyers,
which ranges far beyond
mis-named “service” teaching of law for businessmen, accountants ,
social workers and the police
to include activities aimed at raising the
consciousness of and providing practical tools for grass-roots activists, trade
unionists
and ordinary citizens to help them to understand and use and cope with
law as it affects them in their daily lives and work.
In one respect,
however, my focus will be narrow: legal education (or mis-education) is
delivered and takes place in many arena and
contexts besides specialized law
schools. It occurs in law offices, government departments, plush hotels,
schools, factories, villages
and the home. It is delivered by non-lawyers and
the media as well as by those who call themselves law teachers. However, I shall
focus on specialized law schools as the actual or potential hub of any system of
legal education. In the second part of the paper
I phase law schools need to
take more seriously than they have done in the past the idea that they should
conceived, planned, financed,
and equipped to become multipurpose centres that
are concerned in a sustained way with all levels of legal education in society.
This argument is not new. It was advanced in a report by the International
Legal Center in 1975 entitled Legal Education in a Changing
World5 with which Professor Yash Ghai and I were
associated. That exercise was an education for me. Since then the world, legal
professions,
patterns of practice, legal education and some of my own views and
perceptions have changed, but largely in ways that confirm and
strengthen the
main themes of that report. The argument is not intended to provide a blue-print
for all law schools to follow; it
is rather to suggest that perceptions,
discussions and decisions within the higher reaches of legal education need to
take account
of some far-reaching trends and a wider agenda of issues than the
traditionally inward-looking discourse of legal education has encompassed.
TRENDS
I have undertaken to say something about trends in
legal education in the Commonwealth in the last 20–30 years. The more one
considers the subject the more one realizes that, even in relation to a single
country, legal education is much more complex than
most discussion and reports
acknowledge. That is one reason for the extent of the literature and the
persistence of controversy.
If one is considering the whole Commonwealth over a
long period of time the dangers of generalization are obvious. Accordingly
before
delivering on this rash undertaking, I must enter a feeble caveat: all I
can offer is some impressionistic hypotheses about some
trends and tendencies
that seen to be widespread, but which are clearly not universal. That it is
possible to do so at all is a tribute
to the extraordinary strength of the
network of contacts between law schools in the common law world.
One
convenient starting-point for such an overview is a document, entitled Law As
An Academic Discipline,6 prepared for the Heads of
University Law Schools in England in 1983 and submitted to the University Grants
Committee as part of a
plea to take account of the resource needs of the subject
in a situation of rapid change and economic adversity. Although it was
a piece
of advocacy by an interested group, it represented an unusual consensus, which
was also endorsed by the Heads of Polytechnic
Law Schools in England and the
Heads of Scottish Law Schools. Because it attempted to catalogue recent trends
and likely developments
over the period we are concerned with, it is worth
quoting at length:
Recent Trends in Law as a Discipline
There have been very significant changes in the scale, content and styles of legal education and research in this country in recent years. Fifteen years ago law as an academic discipline was centred very largely on the teaching of three-year undergraduate degrees (except in Scotland and Northern Ireland) that were strongly, but not exclusively, oriented towards preparation for private practice. The primary focus was on the exposition and analysis of legal doctrine as it was to be found in cases, statutes and textbooks. Syllabuses were much the same nationally, with a strong emphasis on private law. Legal research was similarly oriented and was almost entirely library-based. Law faculties often had the worst staff-student ratios in the University and were viewed as having more modest resource needs than most other disciplines, except in respect of library provision. The past fifteen years or so have seen number of important changes that have cumulatively contributed to a new perception of law as a discipline. In the present context the following are particularly significant:
All of these developments have financial implications, mostly in the direction of increasing unit costs in legal education and research; computer hardware, the need for visits by staff and students to other parts of Europe, and a broader conception of what is legally relevant in library provision, as well as the effects of inflation and currency fluctuations, all affect unit costs; the expansion of the range of standard subjects has produced enormous pressure to extend the period of undergraduate study and has increased demand for postgraduate and post-qualification opportunities; clinical legal education and skills teaching are labour intensive; field work and empirical research tend to cost more than library research. Some of these developments have significantly increased the need for sabbatical leave and special grants (unheard of in most law faculties fifteen years ago); this in turn is another factor that makes traditional unfavourable staff-student ratios less and less acceptable. Law is still one of the most cost-effective subjects and probably the least expensive of professional subjects, but it is neither realistic nor acceptable to base assessments of its resource needs on out-dated perceptions of the discipline.
Likely Future Developments
Significant developments in legal education in the next ten to fifteen years are likely to include:
That was written in 1983. Since then there have been other
significant trends, including the rapid growth of international and
interdisciplinary
practice, an increasing interpenetration of professions, the
institution of in-house trainers, and increased interest in access,
distance
learning and education about human rights, especially at grass roots level.
Clearly some of the particular items listed do not apply to most
Commonwealth countries (for example, membership of the European Community);
others are only within reach of more affluent law schools. Yet it would be
surprising if many of these items would be unfamiliar,
at least as ideas and
aspirations, to most law teachers in the Commonwealth. The fact that one can
easily supplement the list in
1989 underlines the dynamic nature of our
discipline. There is, however, one factor which fundamentally affects the
picture —
that of economics.
With a few notable exceptions,
institutions of higher education in the Commonwealth have been experiencing a
long and depressing period
of financial cuts, freezes and squeezes. But there is
a qualitative difference between the situation in richer and poorer countries
in
this regard. In my own country, for example, morale within higher education is
probably at a lower ebb than at any time this century
and the signs are that
things will get worse before they might get better. Law, by virtue of high
demand, traditionally low unit
costs, and its capacity to attract certain kinds
of external funding, including high fees, is probably better cushioned than most
other disciplines. Nevertheless, libraries have declined, support services have
deteriorated, students cannot afford to buy books,
and there is a crisis in
recruiting and retaining staff, especially younger academics and specialists in
just those areas in which
we are expected to expand, such as commercial law,
international trade and finance, intellectual property and computer
applications.
Nevertheless we have been able to keep going and even to take some
modest new initiatives.
For an English law teacher to visit law schools in
Ghana, Kenya, Lesotho and Tanzania, as I have done in recent months, is to be
given
a sharp lesson in relative deprivation. Again generalization is dangerous,
but the overall picture is grim. In England we complain
about falling behind the
earnings of other professional groups; in several African countries law teachers
are worried about being
able to feed their families, even if they have been able
to find second or third jobs. In England we complain about cancelling periodical
subscriptions and not being able to buy expensive monographs; in some African
Law Libraries hardly any foreign books or periodicals
have been acquired in the
last ten years and as local legal works wear out they are not replaced. Where we
complain of cuts in the
Xerox budget, they have to cope with shortages of paper
and even of chalk. Students often do not have access to adequate materials
on
local law, let alone recent foreign literature. Facilities for research and for
preparing teaching materials have, like the once
fine libraries, declined
drastically. I would blush to mention figures in comparing our gripes about
staff-student ratios with those
of Nairobi. What is remarkable is the spirited
way in which students and staff cope with such adversities: students get taught
and
obtain respectable, sometimes outstanding, degrees; some research gets done
despite all the difficulties; and some initiatives are
taken, such as the
Tanzanian legal aid camps to which I shall refer later. When I gave some
lectures in Nairobi in 1989, I found
myself facing as highly selected and
intelligent a group of undergraduates as I have encountered anywhere in recent
years.
The crises facing nearly all African law faculties is part of an
acute financial problem affecting African universities, a situation
that is not
unique to Africa. In response to this crisis an informal consortium of African
law school deans is currently planning
an initiative which, it is hoped, will
highlight the nature and extent of the resource problems of African law schools
and make practical
recommendations in a form that will mobilise efforts to stem
the decline of these important institutions, including assistance with
such
matters as basic equipment for the production of local teaching materials,
library provision, regional co-operation and staff
development. They are
important institutions not only because of their actual and potential
contributions to national life, but also
because they continue to attract a very
high proportion of the best-qualified school leavers, an elite of an elite.
This problem is one that is particularly suitable for Commonwealth
co-operation, although the contribution of foreign assistance to
local law
schools can at best be marginal. Yet one of the obstacles is the persistence in
some quarters of the idea, which some of
us thought had been debunked in the
sixties, that law is not “developmentally relevant”. Professor Keith
Patchett has
cogently reargued the case for law in this
context8 and, I hope, some of the themes in this paper
will lend support to his case. News of interesting, even exciting, new
developments
and ideas in our discipline needs to be balanced by a sense of
realism about the sombre facts concerning its economic base in many
countries.
Nevertheless, despite this and other difficulties, law as a discipline can
hardly be said to be stagnating in the Commonwealth.
This can be illustrated by
describing some of the activities with which the Commonwealth Legal Education
Association (CLEA) has been
recently associated. I do not do this to beat the
drum for CLEA ... although I am proud to be connected with that admirable
organization
... but rather to give some examples of ways in which the frontiers
of legal education are being expanded and of the kind of potential
for low-key
cooperative action that is open for Commonwealth NGOs in disseminating
information, facilitating local and regional initiatives
and in stimulating
thought, debate and action on neglected and important topics.
I shall be
selective. I have already mentioned the proposed initiative by African law
school deans. During recent years CLEA has been
involved or associated with a
wide range of projects and activities all of which have been reported in its
Newsletter.9 These include localization
of legal literature and information; the Commonwealth Moot competition, which
last took place in New Zealand
in April, 1990; law library provision and
continuing legal education (both in co-operation with the Commonwealth Lawyers
Association);
research and development into legal
skil1s;10 regional judicial training workshops in
Zambia and Trinidad (jointly with the Commonwealth Magistrates Association);
legal education
in multi-lingual societies;11 law
foundations;12 the preservation and management of legal
records of semi-current and archival value; law teaching clinics (exported from
Canada);
an annual conference at Cumberland Lodge and a number of mundane, but
useful activities relating to the dissemination of information
and
bibliographical work.13
Let me look briefly at five
activities each of which illustrates the twin themes of Commonwealth
co-operation at the frontiers of
legal education.
Distance Education
Distance learning or distance education are relatively new names for long-established practices that have gone by less enticing titles, such as correspondence courses and external degrees. The re-naming, which started with talk of open universities, signifies a recognition that this kind of study, which has often been the Cinderella of higher education, has a crucial role to play in increasing educational opportunity. With the aid of modern technology and education methods it need not be a second best to more traditional full-time study. The Commonwealth of Learning was established by a decision of the Commonwealth Heads of Government in 1987 and has recently set up its headquarters in Vancouver. It is worth bearing in mind that there has been a long tradition of distance learning in Law. The London External LLB, for example, was started in 1850 and has been open to students from all over the world since 1858.14 Currently the number of students enrolled for that degrees exceeds the total number of internal undergraduate students enrolled in the five law schools of the University of London. Law students also represent about 70–75% of all enrolments in London external degrees, a dramatic indication of the buoyant, some would say excessive, international demand for opportunities to study law. Two aspects of recent developments are relatively new: first, a determination to exploit the possibilities of modern technology and educational theory; and, second, a growing realisation that this form of learning may be at least as significant in respect of access courses, postgraduate, continuing and specialist education and training as it is for primary academic and vocational work. Recently, at the suggestion of Professor John Goldring of Sydney, Australia, CLEA has begun to develop a project to explore the needs, possibilities and methods of developing distance learning in law at international level.15 One crucial issue will be whether primary legal education is the best place to start.
The Commonwealth Human Rights Initiative
In September, 1989 a consortium of Commonwealth NGOs
representing journalists, doctors, trade unionists, lawyers and law teachers
launched a major initiative in the field of Human Rights. A distinguished
Advisory Committee chaired by a former Canadian Minister
for External Affairs,
Ms Flora MacDonald,l6 has undertaken to prepare a
report on the promotion of Human Rights in the Commonwealth in time for the
meeting of Heads of Government
in 1991. CLEA has urged that considerable
attention should be given to issues concerning education and dissemination of
information
and training needs of “front-line” functionaries in both
private and public sectors, including trade unionists, social
workers, police
and prison officers, school teachers, journalists, organizers of women’s
groups and other grass roots activists.
This emphasis has been endorsed by the
declaration at the close of the recent Commonwealth Conference of Heads of
Government Meeting
in Malaysia.17
It is too early
to predict details of the precise approach that will be adopted by the CHRI
Advisory Committee, but it seems likely
that it will place considerable emphasis
on education and dissemination of information and the role of NGOs in promoting
human rights
at grass roots level. Again it is worth noting that human rights is
another area in respect of which ideas about legal education
are extending far
beyond specialised undergraduate education and primary vocational legal
training. It does not follow from this
that law schools are not or should not be
involved in these efforts. One of the most interesting recent projects in this
area has
been pioneered by the Faculty of Law in Dar-es-Salaam. For several
years, as resources have permitted, the Legal Aid Committee of
the Faculty of
Law has organised legal aid camps in which small teams of lecturers and others
go outside the capital to towns and
villages and bring law to the people through
public lectures, seminars for special groups and legal advice clinics. The
response
seems to have been very positive and their reports make fascinating
reading.18 No doubt such activities are to be found in
different forms in many places and it is hoped that the CHRI exercise will
provide a
systematic account and analysis of current projects and problems and
future possibilities.
Law Student Mobility in the Commonwealth
It would be cynical to say that the term student
mobility is merely a euphemism for differential fees. It has encompassed more
than
that. Nevertheless, the Commonwealth Standing Committee on Student
Mobility, under the Chairmanship of Sir Roy Marshall, was set
up as a response
to the charging of differential fees by several Commonwealth governments, and
particularly by the United Kingdom
Government in
1979–82.19 Its reports make depressing reading.
For not only has overall student mobility declined, but these policies have had
a number of
side-effects, some of which have involved considerable hardship for
individuals. The effects on Law have been complex. On the one
hand opportunities
for study abroad have been greatly reduced especially for less well-off
jurisdictions and individuals. Insofar
as there has been some increase in
scholarships, although not nearly enough to offset the effects of the policies,
Law has often
suffered by virtue of its alleged lack of “developmental
relevance” referred to above. And we are all familiar with the
less
attractive effects of the introduction of commercial values in this context. On
the other hand, the results have not all been
bad. Local facilities for legal
education have sometimes been strengthened, including at postgraduate level, by
the decrease of opportunities
to study abroad. Attention has been focused on the
special problems and needs of overseas students. And the pressure to give value
for money has led to often overdue reviews and tightening up of some courses and
their administration.
For the past ten years CLEA has opposed differential
fees on principle, has tried to monitor their operation and to mitigate their
effects. A Working Party, chaired by Jill Cottrell, has recently issued an
interim report20 and liaison with the Marshall
Committee will be maintained. This nevertheless remains one of the sorrier
Commonwealth stories in
recent years.
Access to Legal Education and the Legal Profession
Access to higher education has been a subject of concern in many countries and is likely to gain increasing attention in the nineteen-nineties. A recently published book on the subject,21 with which I was personally associated, suggests that there are some international trends and patterns and that some strategies and solutions may also be transferable. One theme that runs through most of the contributions is the sheer intractability of the problems; another is that changes in admissions policies to law degrees are unlikely to make a significant difference on their own without other measures, such as access courses, adjustments to curriculum and flexibility in respect of educational provision and routes to qualification. In short, the problem of access is not solely or even mainly a problem of selection. One encouraging point is the way in which the gender ratio at undergraduate level has greatly improved in many jurisdictions in the past fifteen years, probably as a part of wider trends rather than because of factors internal to legal education. Less encouraging are the statistics in respects of class, ethnic minorities and the educationally deprived. One lesson for me has been that law schools which take the problem of access seriously will need to become much more involved in access courses and remedial provision, if they are to make much impact, and this, like most other developments in legal education, costs money.
Skills Teaching
A companion volume22 to the book on access takes stock of the state of direct teaching of skills, mainly at the vocational stage. The bulk of the book consists of teaching materials and course plans used in Australia, Canada, England, Hong Kong and New Zealand in relation to particular skills or skill-sets such as interviewing, drafting negotiation, counselling, analysis of evidence and advocacy. Canadian, and so indirectly, American influence, is very apparent. The publication of the book coincides with a strong international movement to switch emphasis from knowledge to skills, especially at the vocational stage. The collection reflects a considerable increase of sophistication in this kind of teaching over the past decade. It also suggests a welcome convergence between the priorities of professional trainers and of upholders of traditional values of classical liberal education in respect both of transferable intellectual skills and concern with ethical dimensions of practical problem solving.23 In the present context, however, one further point is particularly germane: if the materials in this book are at all representative of what is being done by way of skills training in the Commonwealth, including in continuing legal education, it suggests that attention has so far been focused almost exclusively on introducing basic skills to a minimum level of competence at best rather than developing excellence over time. In short, skills training is still concentrated at the primary level.
DISCOURSE ABOUT LEGAL EDUCATION
Most discussions and debates about legal education
and training are data-free. The ILC exercise revealed how little solid
information
there existed in nearly all countries about most facets of legal
education, even in respect of elementary statistics. We had to proceed
and
pontificate on the basis of pooled impressions, biases and extraordinarily
patchy information. The same point was dramatised
by an acrimonious debates in
Hong Kong in 1983 about direct teaching of professional skills in which it was
apparent that neither
side had any empirical basis for their assertions about
the value or effectiveness of such training.24 I am
pleased to report that that particular occasion led almost directly to the
establishment of programmes in Windsor, Ontario and
London which are attempting
to pioneer serious research into legal skills despite enormous methodological
difficulties.25
This paper inevitably also has to
proceed largely on the basis of impressions and faith. There is of course a very
extensive literature
of variable quality, some of which contains detailed and
reliable information about particular matters. For the purpose of developing
my
argument, I shall use a selection from one part of that literature: official and
semi-official reports on legal education in Commonwealth
jurisdictions.
The
modern history of legal education has been marked by an extraordinary number of
such reports with a geographical reach ranging
from single law schools, a
provincial or state jurisdiction (such as Northern Ireland or New South Wales or
Ontario) to a region
or continent or, in the case of the ILC report, the whole
of the Third World. Whether or not these reports have been implemented
or have
been influential in other ways, they have been significant events, which have
focused attention, stimulated debate and produced
considerable judgments as well
as evidence in which opinion and prejudice have usually outweighed hard data by
a significant ratio.
They are at the very least a significant part of the
archeology of modern discourse about legal education and they provide something
to react to.
Some of these documents mark historical milestones: for
example, the Denning Report on Legal Education for Students from
Africa26 (1959–60) opened the way to the
decolonisation of legal education in anglophonic Africa. Immediately post hoc,
if not propter
hoc, law schools were established in Ghana, East Africa and
Nigeria, to be followed in a relatively short period of time by the
establishment
or upgrading of local institutions in nearly all anglophone
countries in Africa. The Ormrod Report in 1971,27
despite the non-implementation of many of its specific recommendations,
established a clear and rather rigid structure for legal
education and training
in England that shows signs of continuing for many years to come. In the United
Kingdom the Ormrod structure
became the starting-point for a further series of
colloquially eponymous documents. Armitage and Bromley in Northern Ireland,
Hughes
in Scotland, Benson, Marre and MacKay in England
again.28 Both before and after Ormrod there have been
major reports of a similar genre in many Commonwealth countries, for example,
Wooding
(1967) in the Caribbean; Bowen (1979) in New South Wales; Pearce (1987)
in Australia; McNally (1985) in Zimbabwe.29 Other
reports, such as the much-debated Arthurs Report on Law and Learning
(1983),30 probed particular issues with depth and
authority. Taken together these documents constitute a substantial body of
literature which,
despite a generally weak empirical base, reflects a greatly
increased sophistication in the discourse and practice of legal education
and
training in the past thirty years.
Much could be said about this body of
literature both as contributors to and indicators of developments in legal
education in the
Commonwealth in this period. A history of these developments
which was based solely on them would be both thin and misleading. However,
two
aspects of the genre are directly relevant to my argument. First, almost without
exception they either assumed or espoused the
structuring of professional legal
education and training into a series of distinct stages which to a large extent
reflected different
spheres of influence rather than an agreed educational
philosophy. The Gower model as it has come be known, whether fairly or
unfairly,31 carved up legal education and training into
three or four distinct stages: academic, vocational, apprenticeship and
continuing. This
structure has become established in nearly all jurisdictions of
the Commonwealth that have developed local systems of legal education.
There are
some exceptions, including Canada and India.32 There
have also been some significant variants: in particular, in some instances the
vocational stage has been treated as a substitute
for formal apprenticeship,
whereas in others it is regarded as a preparation for it; in some countries, as
in the Caribbean, England,
Kenya and Nigeria the vocational stage takes place in
professional law schools that are entirely separate from those providing the
academic stage; in others, such as Hong Kong, Northern Ireland, Scotland and
Zimbabwe the vocational stage takes place within universities,
although
typically with special arrangements in respect of governance, staffing etc. In
most Commonwealth countries, continuing legal
education is still at an early
stage of development and provisions for specialist training and for re-training
are almost non-existent.
I am not here directly concerned with the
controversy surrounding the costs and benefits of the Gower model and its
variant.33 But two points about it are relevant to
interpreting current trends in the Commonwealth. First, in adopting this
structure most Commonwealth
countries have rejected other possible models that
once were realistic options: the medical school model, the American law school
model, and the significantly different Continental European model, which in its
Prussian version was seriously argued for in England
in the nineteenth
century.34 To put the matter boldly, the rigid
four-stage structure marginalizes the contributions of academics (in respect of
research and
policymaking as well as teaching) to matter dealt with at the later
stages and to the operation of the legal system generally. The
contrast in the
contributions and status of scholar-teachers of law in the United States and
most civilian countries, and academics
in medicine more widely, is attributable,
in large part, to a structure which confines primary activities to the primary
stage of
legal education and training. The consequences are becoming
increasingly apparent in respect of legal theory. Some of the most interesting
modern developments in respect of legal reasoning, analysis of evidence,
probabilities and proof, and negotiation are normally more
directly relevant to
practitioners, judges and reformers in the higher reaches of a legal system than
to undergraduates and fledgling
practitioners. Yet in systems which have adopted
the primary school model, theory is generally regarded as something one grows
out
of after graduation. As a legal theorist I have found that mature
postgraduates and American judges are my most receptive audiences,
provided that
we have enough time to deal with a topic thoroughly.
Another point about the
Gower model is that it seems to be in process of coming under severe pressure at
present. The introduction
of a five year integrated LLB in several leading
Indian law schools, including the new National Law School in Bangalore, and the
collapsing of the academic and vocational stages into a single four year
integrated course in Zimbabwe, although triggered by different
factors, may be
the start of a trend to break down the rigidity of the barriers between the
academic and vocational stages. In England
I sense that the three year
undergraduate degree is coming under conflicting pressures that will almost
certainly force some changes
over time. On the one hand, there is pressure from
the legal profession to increase the number of standard subjects covered in the
already overcrowded curriculum, to include, for example European Community Law,
Family Law, Company Law, International Trade, Human
Rights etc as standard, if
not core subjects, while at the same time there is the quite different complaint
that law graduates emerge
with cluttered minds and underdeveloped intellectual
skills, such as the capacity to write clearly, construct a cogent argument and
use a library intelligently.35 Symptomatic of the
increase in standard subjects is that the number of options offered in the
London LLM has increased from about
30 in 1965 to well over 100 in 1989. I am
told that Monash law school at the time offered nearly 70 options as well as
eight required
subjects in its first degree. At both undergraduate and
postgraduate level the number of standard subjects has increased over the
years,
but the time available for studying them has generally remained unchanged. At
the same time one possible way of mitigating
the pressures of an overcrowded
curriculum, increasing the standard length of law degrees to four years, is
rendered harder, though
not impossible, by the joint factors of the economic
squeeze and a desire to promote access. There are other factors that are putting
the artificial rigidity of the Gower structure under strain, but it is so deeply
entrenched that in most countries it is likely to
survive for the foreseeable
future.
The second feature of this body of literature that is relevant to my
theme is that it concentrates almost exclusively, indeed often
obsessively, on a
narrow range of issues concerning law degrees and basic professional training.
Lip-service is sometimes paid to
potential contributions of law schools to
interdisciplinary work, continuing legal education, postgraduate studies and law
for non-lawyers
and even to the idea education is a life-long enterprise, which
will increasingly involve retraining and possibly re-certification.
But they are
treated as secondary, the financial implications are rarely considered and
institutional prestige tends to be more tied
up with primary level teaching than
with anything else.
The focus of these reports fortifies existing attitudes
and practices. For the self-perception of nearly all law schools and most
law
teachers and, equally important, the basis for their funding, is dominated by
the idea that their essential role is the teaching
of full-time undergraduates
or, in the case of professional law schools, intending lawyers before they start
apprenticeship or practice.36 Everything else is
treated as peripheral and is marginalised. One consequence of this is that the
vast bulk of the efforts of specialist
professional legal educators, the
full-time teachers of law, is focused on some of the most elementary forms of
legal education,
usually under severe time-constraints, the rest being treated
either as external work or left to practitioners for whom teaching
is at best an
avocation. It is rather as if, in a given system of education, all the trained
full-time teachers and educators were
concentrated in primary schools.
The
standard image of a law school is thus an institution concerned almost
exclusively with full-time undergraduate education or with
preliminary
vocational training or a combination of the two. An alternative model is
presented in the ILC report.
Law Schools as Multipurpose Centres for Legal Development
Legal education (like agricultural or health education) can be seen as a system of activities. The activities include: training (formal and non-formal) for different law roles; diffusion of education about law in society; education to enable a particularly important kind or participation in the world of affairs; research to produce better understanding of the content, underlying assumptions, social context and effects of law and to stimulate reforms in the legal system and processes of implementing development policies. Despite the existing situation, legal education can in theory be planned and developed to serve a wide range of goals — just as agricultural education can be planned as a means for agricultural development.
The
university law school is only one element in this system, but it probably is a
crucial one. Law schools, perceived as multipurpose
centres, can develop human
resources and idealism needed to strengthen legal systems; they can develop
research and intellectual
direction; they can address problems in fields ranging
from land reform to criminal justice; they can foster the development of
indigenous
languages as vehicles for the administration of law; they can assist
institutions engaged in training paraprofessionals; they can
help to provide
materials and encouragement for civic education about law in schools and more
intelligent treatment of law in the
media; they can organize, or help organize,
advanced specialized legal education for professionals who must acquire
particular kinds
of skills and expertise.37
It
might be objected that few existing law schools are only involved in primary
legal education and that, in nearly all countries,
it would be unrealistic to
expect one institution (or even a group of them) to live up to the idealised
picture of law schools as
the multi-purpose hub of a comprehensive system of
legal education, especially in a period of economic adversity. It might further
be objected that primary legal education is critically important and might
suffer by a radical extension or diversification of the
functions of law
schools. I largely agree with these points, but do not consider that they are
serious objections to my argument.
I agree that many law schools are involved in
some of the developments discussed in this paper38
though rather spasmodically and often with an unsatisfactory financial and
administrative base. Activities perceived as marginal
will usually be marginally
financed. Clearly there will always be problems of priorities; it is not
self-evident that primary legal
education should always be the highest priority
for a given institution. Nevertheless it is likely in practice to be given a
high
priority in respect of resources and attention. After all, secondary
schools could hardly exist without primary schools.
Both the “primary
school model” and the “multipurpose model” are only models or
ideal types, that is to say
they are tools of analysis rather than blueprints.
In the present context they may be useful for analysing the actual and potential
functions of law schools in different societies and for challenging some
standard assumptions about the scope and role of legal education
in any given
society. My impressionistic survey of some recent trends suggests that some of
the most interesting recent developments
fall largely outside the primary model.
I have suggested that increasing access involves much more than adjusting
admissions policies;
that there is a need for theory, research and development
concerning what constitutes excellence as well as competence in respect
of
skills and how both of these are best developed;39 that
academic lawyers could contribute much to the evolution of continuing,
specialist and judicial training as well as to legal
education for non-lawyers
and the important field of education and dissemination of information about
human rights; and they have
a crucial role to play in the localisation of legal
literature and information, as has been shown in Northern
Ireland.40
In short, the agenda of issues central
to law as a discipline is changing and ways of thinking and debating and making
decisions about
the subject need to adjust to this. In particular much more
attention needs to be given to the social functions of law schools in
developed
as well as developing societies and to the practical implications of becoming
seriously involved in a wide range of activities
beyond primary legal education
and traditional research. There are many implications, some obvious, some less
obvious, not least
in respect of finance, organization, power and authority, and
the nature of the academic legal profession itself. As a preliminary
to
confronting these issues legal education needs to be reconceptualised. The
perspective adopted in Legal Education in a Changing World and borrowed
in this paper at least offers a starting-point.
* University College, London; Chairman, Commonwealth Legal Education
Association (hereafter CLEA). This paper was presented at a conference
to
commemorate the twentieth anniversary of the Faculty of Law of the University of
Hong Kong, 15–16th December, 1989. It was
published in R Wacks (ed) The
Future of Legal Education and the Legal Profession in Hong Kong (University
of Hong Kong, 1989) and is reprinted by kind permission of the
publishers.
© 1991. (1990–91) 2 Legal Educ Review
35.
1 J Omotola & A Adeogun eds, Law and Development Lagos (1987).
2 I Shivji ed, Limits of Legal Radicalism (University of Dar-es-Salaam, 1987).
3 Commemorative Issue, (1987) 50 Mod L Rev 673–854.
4 Legal Scholarship in Africa (University of Trento, 1989).
5 Committee on Legal Education in Developing Countries, Legal Education in a Changing World: Report of the Committee on Legal Education in Developing Countries (New York: International Legal Center, 1975).
6 Heads of University Law Schools, Law as an Academic Discipline: A Response to the Leverhulme Report and the UGC Letter on a Strategy for Higher Education into the 1990s (March, 1984). An abbreviated version was published in The Society of Public Teachers of Law, Newsletter (Summer, 1984).
7 Id.
8 K Patchett, The Role of Law in the Development Process (1987) 48 CLEA Newsletter 33.
9 CLEA Newsletter, obtainable from the Secretary, CLEA, Legal Division Commonwealth Secretariat, Marlborough House, Pall Mall, London, SW1.
10 N Gold, K Mackie & W Twining eds, Learning Lawyers’ Skills (London: Butterworths, 1989).
11 See especially, M Cooray, Changing the Language of the Law: the Sri Lankan Experience (Quebec: L’Universite de Lavel, 1985).
12 J Cooper, Law Foundations in the Commonwealth: A Campaign Strategy (London: CLEA Working Paper No. 1,1989).
13 See for example JD Elliot, Pacific Law Bibliography (Canberra: Commonwealth Secretariat, CLEA, 1988); J Watt, The Legal Skills Sourcebook (St Leonards, NSW: College of Law, 1989).
14 For details see W Twining, 1836 and all that: Laws in the University of London 1836–1986 (1987) 40 Current Legal Problems 261, at 280–85.
15 J Goldring, Distance Teaching in Law: A Proposal for Commonwealth Co-operation (1989) 57/58 CLEA Newsletter, Annex 11; J Goldring, Distance Teaching in Law: Possibilities for Commonwealth Co-operation (1990) 2 Legal Educ Review 83 .
16 Professor Yash Ghai, of Hong Kong Faculty of Law, is the CLEA nominee. Other members are Dr George Barton (New Zealand, nominated by the Commonwealth Lawyers Association), Mr John Morton (United Kingdom, nominated by the Commonwealth Trade Union Council), Professor Beko Ransome-Kuti (Nigeria, nominated by the Commonwealth Medical Association) and Mr George Verghese (India, nominated by the Commonwealth Journalists Association). An interim report was published after this paper went to press: Put our World to Rights: Towards a Commonwealth Human Rights Policy (London: CHRI, 1991).
17 Commonwealth Heads of Government Meeting, Communique (Malaysia, 1989).
18 Legal Aid Committee, Reports (University of Dar-es-Salaam). These include annual reports and special reports on particular Legal Aid Camps.
19 For a general review see R Marshall, International Education: Keeping for Doors Open on International Student Mobility in the Commonwealth (1989) 56 CLEA Newsletter at 33, Annex 2.
20 J Cottrell, Overseas Law Students in the Commonwealth (1989) 57–58 CLEA Newsletter 31 (interim report of a working party).
21 R Dhavan, N Kibble &W Twining eds, Access to Legal Education and Legal Profession (London: Butterworths, 1989).
22 See Gold et al., supra note 10.
23 W Twining, Legal Skills and Legal Education (1988) 22 The Law Teacher 4.
24 R Meagher, How Can You Learn Practice From ‘Theory’ (Papers of the Seventh Commonwealth Law Conference, Hong Kong, 1983) discussed in W Twining, Taking Skills Seriously (1985) 43 CLEA Newsletter, reprinted in Gold, Mackie & Twining, supra note 10.
25 Commonwealth Institute of Legal Education and Training (CILET), Windsor, Ontario and Legal Skills Research Group, Institute of Advanced Legal Studies, London.
26 Report of the Committee on Legal Education for Students from Africa (The Denning Report) (London: HMSO, 1971) Cmnd 1255.
27 Report of the Committee on Legal Education (Ormrod Report) (London: HMSO, 1971) Cmnd 4574.
28 Report of the Committee on Legal Education in Northern Ireland (Armitage Report) (London: HMSO, 1973) Cmnd 579; Report of the Committee on Professional Legal Education in Northern Ireland (Bromley Report) (Belfast, 1985); Report of the Royal Commission on Legal Services in Scotland (Hughes Report) (London: HMSO, 1980) Cmnd 7846; Report of the Royal Commission on Legal Services (Benson Report) (London: HMSO, 1979) Cmnd 7648; A Time for Change; Report of the Committee on the Future of the Legal Profession (Marre Report) (London: Bar Council and Law Society, 1988); Legal Services: A Framework for the Future (White Paper presented to Parliament by the Lord Chancellor, Lord Mackay) (London: HMSO, 1989) Cmnd 740.
29 Report of the Committee on Legal Education in the West Indies (Wooding Report) (Institute of Commonwealth Studies, 1967); Legal Education in New South Wales: Report of Committee of Inquiry (Bowen Report) (Sydney: Government Printer, 1979); Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (Pearce Report) (Canberra: AGPS, 1987); Report of Committee of Inquiry into the Qualifications for Registration as a Legal Practitioner (McNally Report) (Harare, 1985).
30 Law and Learning: Report of the Consultative Group on Research and Education in Law (Arthurs Report) (Ottawa: Social Sciences and Humanities Research Council, 1984).
31 The Gower model was developed in the special circumstances of Ghana and Nigeria. See LCB Gower, Independent Africa: The Challenge to the Legal Profession (Cambridge: Harvard UP, 1967).
32 Most Canadian Provinces have introduced vocational courses which run from two weeks to eight months; this represents a convergence with the Gower structure, but Canadian law schools are still closer to the US model.
33 See W Twining, The Benson Report and Legal Education: A Personal View, in PA Thomas ed, Law in the Balance: Legal Services in the 1980s (Oxford: Martin Robertson, 1982) ch 8.
34 Report from the Select Committee on Legal Education (London: BPP, 1846) vol X.
35 Twining, supra note 23.
36 To illustrate the depth of the attitudes to which I refer, let me give some examples from my own recent experience. If a full-time teacher in the University of London involves herself in anything other than undergraduate teaching it has traditionally been treated as being over and above her normal duties. Although more than a third of our students at University College are Postgraduates it is only in the last few years that teaching Postgraduate courses has counted in one’s official teaching load and that still does not regularly apply to supervision of research students. Involvement in continuing work and even the External London LLB are all treated as outside work which is both voluntary and separately remunerated. At nearly every Faculty meeting I remind my colleagues that our postgraduates are part of our academic community and it is only relatively recently that this has formally been recognized by having an elected postgraduate representative on the Faculty.
37 Committee on Legal Education in Developing Countries, supra note 5, at paras 101–2.
38 One of the functions of international networking is to disseminate information about worthwhile activities: my personal list of examples that deserve attention includes (the order is not significant): Servicing the Legal System (the Queen’s University Belfast); the Legal Resources Foundation (Zimbabwe); the admissions policy of the Faculty of Law, the University of Windsor, Ontario; the Access course at the Polytechnic of the South Bank, London; the Canadian Law Teaching Clinic; the Hong Kong Law Journal (not out of deference to my hosts); the Nairobi Law Monthly; the Tanzanian Legal Aid camps mentioned in the text; and , beyond the Commonwealth, the enterprising European Law Students Association (ELSA).
39 An interesting attempt to study what constitutes excellence in advocacy has been undertaken by the Ontario Advocacy Institute. See N Gold et al, supra note 10, at 323–4.
40 Servicing the Legal System. The Annual Reports are obtainable from SLS, The Faculty of Law, The Queen’s University, Belfast, BT7 INN, Northern Ireland.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/LegEdRev/1991/2.html