Look at me – I had no legal education
If law be not a science, a university will best consult its own dignity in declining to teach it
A great and noble occupation
Introduction
The early years of my life in legal education were measured out with attitudes of members of the legal establishment who did not think I had a proper job. ‘Look at me – I had no legal education’ was the refrain of mid-twentieth-century Law Lords beginning with D – Lords Denning, Devlin and Diplock.1 Other sneers were more direct. Nevertheless, Legal Education as a field of study and debate has taken up a great deal of my energies as a student, teacher, scholar, administrator, policy-maker and agitator. This was partly because I was interested in Africa and education and higher education before I was ever interested in law.
I have written extensively, probably too much, and quite critically about Legal Education as a field and legal education as a set of ideas, institutions and practices2 as much as an activist as a scholar. Educational themes have pervaded earlier chapters. Most of my writings up to 1994 are collected in two books. Law in Context: Enlarging a Discipline (1997) brings together seventeen essays that advance the cause of broadening the study of law both generally and in specific ways (e.g. in respect of liberal education, access, skills and contextual approaches). Blackstone’s Tower (1994) is a more coherent book which focuses on the history, traditions and prospects of English law schools as institutions. It makes the case for academic law realising its potential as part of the humanities and social sciences and making a greater contribution to general culture.
This chapter is mainly a gloss on these two books, highlighting their background and providing links with passages that might be still worth reading. I do this because since 1994, the world has changed, higher education and legal education are changing in response to many challenges, and my own ideas have developed, in some respects quite radically. For about twenty years after 1994 my attention was focused elsewhere, especially on Evidence and Globalisation, and I only performed or advised about educational matters in response to invitations. I still stand by much of what I said in my earlier writings, but perhaps I left too many of the working assumptions underpinning the unsatisfactory debates and literature unchallenged.
I became more actively reinvolved after the publication of the Legal Education and Training Review (LETR) in 2013.3 In the final chapter (Chapter 20), the section on ‘Rethinking Legal Education’ marks a quite significant late shift in my views on how we might reframe thinking and talk about Legal Education as a field of reflection, research and policy as we enter an era of rapid, possibly revolutionary, changes in information technology, legal services, higher education and education generally. This is still unfinished business.
In order to simplify a complex and potentially repetitive narrative, in this chapter I concentrate on four episodes which are important to my story and for which I can accept some responsibility. The first is my inaugural lecture in Belfast in 1967; the second, a report on Legal Education in a Changing World (New York, 1975); the third, a conference on ‘Legal education for non-lawyers’, in Australia in 1977; the fourth, my involvement with two professional associations and a programme for intending law teachers.
Pericles and the Plumber
My first expansive statement about the field was in my inaugural lecture at Belfast in 1967. The full title was: ‘Pericles and the Plumber: Prolegomena to a Working Theory of Lawyer Education’ (hereafter ‘Pericles’).4 The focus was on the role of university law schools in preparation for legal practice, but the central argument followed Llewellyn in his 1960 lecture on ‘The Study of Law as a Liberal Art’:
The truth is, therefore, that the best practical training a University can give to any lawyer who is not by choice or by unendowment doomed to be a hack or a shyster – the best practical training, along with the best human training, is the study of law, within the professional law school itself, as a liberal art.5
‘Pericles’ was delivered in Belfast in January 1967. It was my first public attempt to challenge the prevailing orthodoxy in the UK. It has sometimes been read as sales talk about the superiority of American law schools. I deliberately focused on the United States because it was not diplomatic to suggest that Dar es Salaam had much to teach UK law schools. I have not changed my ideas on the value of liberal education in law, but my argument in this lecture has often been misunderstood as saying that institutions had to choose between two ideal types, whereas my argument was that neither the image of the enlightened statesman nor of the competent jobbing plumber is suitable for guiding decisions about lawyer education. The tensions between these aspirations continue.6
Since then the contexts, legal practice and formal legal education have expanded, diversified and changed significantly and my own ideas have developed. We are entering a period of even greater change. I still believe that Law is potentially an excellent vehicle for liberal education and that a liberal education is important for intending practitioners; but in advocating that American ideas should be taken seriously in the UK, I now think that I underestimated the differences in respect of funding, the higher education systems, legal culture, the organisation of legal services and the politics of legal education.7 A few American ideas have been borrowed and adapted, such as law school clinics and books of cases and materials, but by and large this has proved to be an indigestible transplant.8 However, the prestige of American law schools has provided a useful foil for critique of our own arrangements.
The International Legal Center, 1971–75: almost a global perspective
Membership of an International Legal Center (ILC) Committee in New York 1970–5 was a game-changer for me. We eventually produced a report entitled Legal Education in a Changing World (1975).9 This was one of two committees set up by the ILC, to consider the future of legal education and research, mainly in the ‘South’, from a global perspective. The Committee was funded by the Ford Foundation and met over five years in New York. The Chairman, Professor Jorge Avendano, was from Peru and members were drawn from five continents. They transcended common law/civil law, North/South, practitioner/academic divides, but some individuals were much more active than others. The proceedings were in English, and the final report came to be dominated by some Anglo-American common law attitudes and ideas.10 We were supplied with an enormous amount of qualitative information and opinions, but statistics and other hard data were very difficult to come by. Although our perspective was ‘global’, many countries were not covered – for example, the Soviet bloc and parts of Asia. This was during the Cultural Revolution and the report that we received on the People’s Republic of China was succinct: ‘There is no legal education in China.’11
Despite these limitations, the process was highly instructive and the Committee produced a forceful, sophisticated, succinct, forward-looking report that has stood the test of time.12 During the next twenty years I used this as a starting-point and framework for analysing legal education policy and for several specific projects.13
Our remit covered the whole world, but this was before talk of ‘globalisation’ became fashionable. Our information was patchy, and our focus was almost entirely on national provision. The culture of law schools is to some extent transnational, mainly within legal traditions or families, but it is also much influenced by local factors. One of the strengths of the ILC Report was that it recognised that particularities of history, culture and tradition, especially higher education structures and finance, providers of legal services, ideology and distribution of power and privilege can all affect local patterns especially where there are conflicting interests. While advancing bold general ideas, it emphasised the importance of local context and held back from making specific general recommendations. It nevertheless provided a coherent framework for analysing and considering systems of legal education at regional, national and lower levels and pointing out possibilities. This served as a quite good preparation for my later work on globalisation. We adopted a global perspective, but our coverage of countries and regions was uneven.
One major lesson of the ILC exercise was that if one is talking transnationally or comparatively, it is imperative to think in terms of national ‘systems’ (or other large units) of legal education in order to consider the diverse ways in which learning about law takes place in different local contexts. Some smaller countries have a single national law school, but in many countries formal legal education is quite dispersed between various kinds of institutions in different sectors. For example, a project on the records of legal education in Greater London in the late 1990s identified well over a hundred institutions that were doing a substantial amount of law teaching. These included university and polytechnic law schools, the Judicial Studies Board, the Inns of Court School of Law, business schools, police colleges, paralegal organisations and private crammers, as well as provision for A level law and numerous adult education programmes.14
In order to spell out a bold vision of the potential role of mainly Western-influenced university law schools in ‘the world’ the ILC Committee had to move away from the idea of ‘legal education’ as something taking place almost entirely in universities, but it nevertheless focused almost entirely on institutions with almost nothing about informal learning about law. While recognising the diversity of providers of formal legal education, it emphasised a key role for university law schools, suggesting that they should be the fulcrum of a national system, concerned for the health of the system as whole.15
Law teachers as educators
The ILC Report argued that full-time academic lawyers should play a major role within a national system of legal education:
The single most important resource in any national system of legal education is the law teacher … The full-time scholar-teacher of law may need to be better equipped as a professional in three respects: as a lawyer, as a researcher and as an educator.16
Over the years I have used this passage as a starting point for analysing the roles and careers of law teachers, in particular arguing that they should view themselves as professional educators as well as scholars and lawyers.17 The argument runs that collectively the academic legal profession and its representatives are and should be the main locus of educational expertise within their national system of legal education and training. This includes pedagogy, educational theory, knowledge of the higher education system, its history and funding, comparison with other jurisdictions and with professional formation in other occupations – matters outside the remit of most practising lawyers and judges. The important point here is that, insofar as law teachers collectively and individually take themselves seriously as educators and are taken seriously as legal education professionals with a near-monopoly of expertise, that expertise should extend to all important aspects of the national situation in their own country, not least in respect of all aspects of professional formation and development from cradle to grave. This may sound more demanding than it is.18 In fact, there have been advances in recent years: some policy is more evidence-based, the literature is more sophisticated and sustained research mainly by academic lawyers is now quite well-developed. In England and Wales some significant moves have been taken in this direction, largely without fanfare, over the last forty years or so. Since the 1990s a great deal of the work for reviews of professional legal education and training has in fact been done by academic lawyers, including several Professors of Legal Education. This is especially clear in the case of the LETR report, for whom the four lead authors of the review could claim just these kinds of expertise.19 But there is a long way to go if an academic legal community is to take much of the responsibility for the health of their national system of ‘legal education’.
Scepticism about taking education seriously is still quite widespread. For example, it took a long struggle for Legal Education research to be recognised as worthy of recognition in research assessment exercises in UK. This attitude is outdated because both the literature of legal education and educational technology are unrecognisably more sophisticated than they were even ten years ago. Neuroscience promises important fresh insights. And the educational context is much more complicated than it used to be.
There is, of course, a widely held and not entirely implausible view that teachers are born, not made – or, at least, that good teaching is as much a matter of personality as expertise. There seems to be an equally widely held view among law teachers that specialists in education have little or nothing to teach legal educators and that Legal Education is not a respectable subject of study and research.20 In my view, on the whole the professionalisation of education is to be welcomed, but some of the scepticism behind resistance to these developments is healthy.21 Yes, we should take educational theory seriously, but the most fashionable kind of educational theory at present is, in my view, too intimately bound up with bureaucratisation and managerialism. Moreover, familiarity with educational theory and pedagogical technique is not a substitute for being competent in and enthusiastic about one’s subject.
Two organisations and a programme
During the period 1976 to 1993 many of my legal education activities took place under the auspices of two organisations: The Society of Public Teachers of Law (1976–9) and the Commonwealth Legal Education Association (1983–93). I also instigated and taught on the Law Teachers’ Programme at UCL (1984–present). These warrant some brief comments.
SPTL
Raymond Cocks and Fiona Cownie have produced an excellent history of the Society of Public Teachers of Law (SPTL), including the story of its expansion and transition from a gentlemen’s social club to a learned society and professional association.22 It is now called the Society of Legal Scholars and by 2016 it had more than 3,000 members. I was actively involved for a relatively short period (1974–9) during this transition and this section is just a gloss on Cocks and Cownie’s account.
In 1966 during the Society’s annual conference a Young Members Group was formed and in the coming years it provided a lively arena for discussing Legal Education.23 Having already taught for seven years, I was too ‘old’ to join, but I participated in some of their activities and for several years undertook a number of projects to do with academic law publishing and localising legal literature in small jurisdictions.24 Because of these activities I was made Chair of the SPTL Publishing Committee in 1974. Thus, I was associated with both youthful agitators and a prosaic-sounding professional project.
Election to the posts of Vice-President and President of the SPTL operated on the principle of Buggins’ Turn. After a year each Vice-President was elected President, the main duties of whom were to host the annual conference, a largely social event, and to chair Council meetings. When in 1977 the Young Members’ Group (YMG) nominated me out of the blue for Vice-President, older members, including myself, were taken by surprise. Some were alarmed. I was too old to be Young, but much too young to be Buggins. But for the fact that I was chair of one quite active SPTL Committee there might well have been a contested election (unprecedented) as it was clearly not my turn. Of course, the main weakness of the Buggins principle is that being President is seen as an honorific rather than as a job; there is little continuity and less leadership. Along with voluntary membership, this has been the weakness of the Incorporated Law Society of England and Wales and many other legal associations.
I took my nomination by the YMG to mean that my remit was to shake up the Society and to treat being an officer as a job. I only had two years. My plan was to make the SPTL into a learned society and a professional organisation. I thought that this would involve some quite radical changes: first, amalgamation of the SPTL and the Association of Law Teachers (ALT), which mainly catered for law teachers in polytechnics and further education, by extending membership of the former beyond full-time university teachers;25 secondly, since nearly all law teachers are specialists, to expand and strengthen the specialist groups and make them the main arenas for scholarly discussions and initiatives; thirdly, to turn the Society’s journal, Journal of the Society of Public Teachers of Law (JSPTL), into a genuinely scholarly publication, to change its name and siphon off papers about legal education to the ALT’s journal, The Law Teacher, thereby strengthening both; fourthly, generally to help to bolster the infrastructure of academic law by continuing the law publishing project, starting an SPTL Law Series and exploring subsidies for some legal publications, such as specialised monographs; and, finally, to set up a working party on four-year undergraduate degrees in Law.
In his speech at the Annual Conference Dinner, my successor, John Smith of Nottingham, famously remarked: ‘Last year was the year of Twining; this year has been the year of untwining.’ This was witty and half-true. There were several disappointments: merger with the ALT failed narrowly to secure the required two-thirds majority; the specialist groups developed slowly, most mainly restructuring their meetings as special sessions at the Annual Conference – I had wanted much more. The SPTL Law series did not last long and subsidies for publication barely happened in face of the view that ‘too much is already published’;26 and, most grievous blow to the Young Members, their motion to substitute a hop for the formal Annual Dinner was defeated.27
However, my term was not a total failure: two journals were strengthened; law teachers were better informed about publishing;28 the Conference at Warwick was intellectually lively and included a coach trip to Stratford to see Othello, which included a particularly vicious Iago; this delighted both a leading ‘Crit’ and Myres McDougal a vociferous ‘anti-crit’ for different reasons, so that both of my Guests of Honour were happy. Imagine my pleasure when in 2002 the SPTL changed its name to the Society of Legal Scholars (SLS). Still a weakness today is the fact that membership of the SLS is still individual and optional, rather than institutional as it is for the Association of American Law Schools where almost all full-time scholar-teachers of law are automatically members by virtue of their affiliation. Such a move would greatly strengthen SLS as a representative body and pressure group.
Perhaps the most significant achievement was to set up a Committee on Four-Year Degrees, which I chaired. At the time, thanks to a quirk in public finances, the Department of Education and Science was unable to prevent students who opted for four-year undergraduate degrees from obtaining mandatory local authority grants. Ever since my time in Belfast I had decided that the standard three-year LLB at 18+ is the Achilles heel of English legal education.29 We did stimulate a few such degrees (mainly mixed, e.g. Law and Politics, and English and Foreign Law ones)30 and we kept the Committee going for a long time. Eventually we faded away without a formal report, because we did not want to give central government a clear target to attack. This was twenty years before the Labour government’s Teaching and Higher Education Act 1998, which radically changed the financing of higher education.
CLEA
In 1983 at the Commonwealth Law Conference in Hong Kong I accepted nomination as Chairman of the Commonwealth Legal Education Association (CLEA) and continued in office as Chairman, then as Executive Chairman (with Yash Ghai as President), until 1993.
Despite the political ambiguities and ambivalences associated with that anomaly ‘the British Commonwealth’, I did not have many qualms about accepting. CLEA had been formed in 1971 at the Commonwealth Law Conference in New Delhi by Lakshmi Singhvi, who later became Indian High Commissioner to the UK. It was a professional association, essentially a subsection of the Commonwealth Lawyers’ Association (CLA), initially only concerned with organising a legal education section of Commonwealth Law Conferences, including a Commonwealth Moot Competition. Over time it took on a life of its own.
CLEA was funded by the Commonwealth Foundation and provided with administrative support by the Commonwealth Secretariat.31 In fact, CLEA’s main function was networking, which it did rather well, partly because the legal establishments of member states found the conferences and specialist groups to be congenial and one interacted with Chief Justices, law officers, judges and leading practitioners from nearly fifty countries; it was a great arena for professional exchanges, testing the waters and, of course, gossip. During my involvement I attended events in Ocho Rios, Auckland, Nicosia, Kuala Lumpur, Colombo, Nairobi, the Isle of Man and Kwazulu Natal. It was very enjoyable and instructive.
CLEA was expanding. Under the leadership of Neil Gold, it was involved in a series of law teaching clinics, based on Canadian models, in various countries. At first the role of Chairman was little more than helping to plan and host one section of Commonwealth Law Conferences, which met with increasing frequency (first every four years, then three, then biennially). We also held an annual event at Cumberland Lodge in Windsor Great Park, mainly for overseas law students and teachers who happened to be in the country. In addition, I was personally involved in a series of projects, including topics as varied as preservation of legal records, access to legal education and legal professions, law publishing and legal information in small jurisdictions, skills development, training the trainers, law in multilingual societies, human rights education, law for non-lawyers and several other matters relevant to the infrastructure of legal education and training and scholarship.32
So far as I was concerned, I contributed some and learned a great deal. Like the ILC experience, it proved to be a staging point en route to my project on globalisation. One important lesson was that both of these activities had limited horizons. They were quintessentially anglophone and common law oriented, although ILC was officially crossing Western legal divides and CLEA did devote some attention to Islamic law, customary law and hybrid legal systems (Mauritius, Sri Lanka and Canada).33 One lesson I learned was that the post-independence histories of former Dutch, French, German, Italian and Iberian dependencies were significantly different from each other and that extrapolating beyond the common law ‘world’ was very risky. I became conscious of my own ignorance, but nevertheless remained ignorant. This contributed to my view that many purported patterns and understandings of law in the world as a whole were sub-global, tied up with language, migration and other legacies of empire in addition to economics.34
LTP
Finally, at UCL since 1984 we have run an optional programme for present and intending law teachers from among our postgraduates, the Law Teachers’ Programme (LTP). This has proved to be much more popular than we first expected and is still running. I still do some sessions each year. Interestingly, in an era which emphasises student-centred learning I find myself in a constant tug-of-war with the class: what they want (or think they want) is almost entirely limited to classroom pedagogical techniques (how to lecture, how to handle power-point etc.). I use my power and authority as teacher to insist on two themes: that it is no use rushing into the how of law teaching before you have given some thought to the what and the why – not only general educational theory and debates about the possible objectives of legal education, but also about the peculiar contexts within which learning about law takes place: the odd history and culture of law schools as institutions and the other contexts such as law firms, barristers’ chambers and (formerly boozy) half days of continuing professional development. The LTP is quite different from the general short courses offered for early career academics at university level, which are abstracted from particular disciplinary cultures and usually concentrate mainly on pedagogy. There seems to be hardly any overlap between what we attempted in the UCL Law Teachers’ Programme and, for instance, induction courses for new university staff or the more substantial Certificate of Learning and Teaching in Higher Education (CLTHE). The former emphasises the distinctiveness of the context, history and traditional assumptions of legal education, the latter general educational theory and pedagogical techniques, without much distinction between disciplines within a rather bureaucratic set of assumptions about universities. At various places they converge, and no doubt complement each other, but the style of the LTP has been quite different.
Law for non-lawyers
In the late 1970s I developed an interest in what is vaguely known as ‘law for non-lawyers’, an umbrella term encompassing street law, legal awareness, legal literacy, law days, legal consciousness, legal studies, service teaching, law in schools and, more recently, Public Understanding of Law (PUL).35 These broadly related activities and studies also overlap with research into law and popular culture, knowledge and opinion about law, and human rights education. The main stimulus for my sporadic interest was a conference at Newcastle (New South Wales) in 1977 on ‘Law for Non-lawyers’.36 This brought home to me how much had already been going on, especially in the United States and Australia, under various labels, mainly outside university law schools. It also stimulated me to think about law as a part of ‘general culture’, a theme that I later developed in Blackstone’s Tower.
My own paper, ‘Legal Education for All’, was a slim affair, starting with a satire on the idea that in order to learn anything you need a course in it, suggesting that after the Kerry Packer shake-up all cricketers need a legal education and this could be not less than a four-year degree programme, given the range of fields of law involved.37 The main point was to link the subject of the conference to several areas that were neglected in conventional discussions of legal education, but which had been highlighted in the ILC Report.38
The ‘commentator’ for this rather fragmented paper was Gil Boehringer, then at Macquarie, a Marxian humanist, whom I knew quite well.39 His comments did not directly address my paper, which he probably had not seen. Rather he used the occasion to criticise ‘Law in Context’ as ‘Neo-Fabian Jurisprudence’, which he said broadened the study of law without attaining depth. Warwick was broad, he suggested, but Macquarie was deep:
[U]ntil our students developed the intellectual habit of deep enquiry of structured analysis asking what law is, what it does, how, why, when loaded conceptions of legality emerge and change, we will not have fulfilled our pedagogical task, nor I would argue our social duty.
It was a surprise to find a critique of ‘law in context’ surfacing at this conference, but by linking his remarks to citizenship and democracy Boehringer made them seem both relevant and challenging. I was not and never have been attracted to Marxism, and as an educator I have categorised my approach as embodying the basic values of the liberal tradition of education, but we seemed to agree on a number of points, such as the pervasiveness of law, that all academic legal education should be conceived as a part of general education, that students should be taught to think for themselves and to ask critical questions and that teaching law to non-lawyers in an intellectually exciting way is crucial. I mention this here, because Boehringer’s comments stimulated me to think that law for non-lawyers could be as important as university legal education and that somehow this was a better starting point for developing a rounded perspective on Legal Education as a field and as a subject. Ruminating on this provided an important clue to why I was so dissatisfied with how conversations and battles about ‘legal education’ were conducted – a topic that I shall return to in the last chapter.
