The Spike: or, Victoria College Review, October 1913
Law & Common=sense
Law & Common=sense.
Some years ago a learned Judge remarked that there were three important matters to be considered in every case. First came the technicalities, then the costs, and then, if both the preceding matters were disposed of, the merits. The remark was probably justified at a time when technical objections were given much weight and costs were often extortionate, but, fortunately, the law and its administration have progressed since then. The rigid regard for forms and rules of pleading, which made an immaterial omission or oversight outweigh a meritorious claim, has happily vanished. The body of the law and its administration can now stand the searchlight of common-sense.
The criminal law has reached a stage where the whole of the relevant facts can be put before a jury: when a verdict is returned the Judge is enabled to, and does impose a penalty appropriate to the offence committing the habitual or dangerous criminal to lengthy imprisonment, and admitting the first-offender to probation. The civil law has also reached a stage where law accords with common-sense, and justice in the legal sense coincides with its popular meaning. If actions are not heard expeditiously and costs made reasonably proportionate to the services rendered then, in nearly every case, it is due page 26 largely to lack of business like methods on the part of the lawyers, but partly also to the acquiescence of the clients to such a course of conduct.
But there is one matter which has not been included in the great progress made of recent years in matters connected with the administration of the law. This is the nature of the test required as a qualification for admission as a barrister. It is a matter of importance both to lawyers and to members of the public who are bound to require legal services at varying intervals.
There are two methods of qualifying for admission as a barrister. The first is by having been admitted as a solicitor and thereafter being in active practice as a solicitor or as managing clerk to a solicitor for five years or upwards. Judges have often adversely commented on solicitors who avail themselves of this method of admission. The second method is by passing the examination in New Zealand law as prescribed for solicitors, and passing a further examination as prescribed in the following subjects:—Latin, Constitutional History, Juris-prudence, Roman Law, Public International Law and Private International Law, and English Language and Literature or Mental Science. These may be taken either as part of the course for the LL.B. degree or independently of it. If the views advanced in this article are correct, then the first method of qualifying is of far more weight and value than passing the examination as at present prescribed. The latter method, if not taken in the usual order of an LL.B. course is likely to render a man less, instead of more efficient, inasmuch as it devotes his available energies to this work to the exclusion of work of a more immediate and practical value at a time when he is particularly likely to benefit by it.
It is proposed to deal with the question of the practical value of Latin, Roman Law, and Public International Law only although the objections advanced against the usefulness of these subjects apply (though not so strongly) to Jurisprudence and Constitutional History.
The object sought to be attained by the course prescribed is to fit the solicitor to perform efficiently the legal work he is called upon to do as a barrister and topage break page break page 27
ensure that those who have to do the more difficult work of advising on doubtful and difficult points of law, and of appearing in the higher Courts, should have higher qualifications than those required of solicitors. The object, of course, is to protect the public by setting a certain standard of efficiency on the part of persons practising as barristers.
Does a study of Latin, Roman Law and International Law materially contribute to the erection of such a standard, or to broaden the student's outlook? How many barristers can conscientiously say they have derived any appreciable benefit from the many weary hours spent in the study of those subjects? The general opinion seems to be that the two first-named are unpleasant subjects not to be discussed except in a humorous way. Never is the knowledge gained applied in later years to enlighten a client (one can well imagine the effect of such an attempt) or elucidate a principle. The student having studied them with no idea of making permanent use of them, promptly forgets them on passing his examination. Such anticipations are not calculated to fire either student or professor with enthusiasm. With this lacking, and with both subjects so remote from present-day life, and of so little intrinsic interest to the average student, what knowledge is acquired rapidly fades from recollection, especially if this period of study is followed by a course of English Law. This course, by its detailed and practical nature and apparent immediate advantage, appeals to the Anglo-Saxon common-sense (abnormally developed), and supplants the apparently irrelevant and useless Latin and Roman Law.
Public International Law differs in being intrinsically more interesting to the average student, but that is not sufficient justification for its inclusion in the course. It is probably true that in the whole course of New Zealand's history not one barrister has found any need for a knowledge of international law in the practice of his profession. Could not the time spent in studying it be more profitably employed otherwise?
But it may be argued that these subjects require concentration and determination, and the fit survive. True, page 28 "There is a soul of good in all things evil." But the subjects which are suggested as substitutes combine this good with that of filling some of the gaps of which a freshly admitted barrister is often sadly aware.
|(a)||Contracts and Torts, LL.M. standard.|
|(b)||N.Z. Real Property Law.|
|(c)||Company Law, LL.M. standard.|
|(d)||The Law of Wills.|
|(e)||The Art of Argumentation, sometimes more inaptly termed Oratory or Rhetoric.|
The advantage of a fuller knowledge of contracts and torts is obvious when one reflects that perhaps the majority of cases that reach the Courts or are the subject of legal difference depend on one of these branches of the law.
So also property law deals with most of the difficult questions which arise for decision in the course of conveyancing and of daily office work.
The importance of a knowledge of Company Law is constantly increasing, and is necessary not only in the interests of shareholders and intending shareholders, but also of creditors. As the industries of the Dominion increase, it must acquire still greater importance.
The Law of Wills is an intricate and difficult subject, and must remain so by reason of the intricate and ever-changing subject-matter and circumstances with which it deals. Its importance does not require to be emphasised, as it comes home to all men's hearths and bosoms. A further study of it as suggested would probably largely reduce litigation, and correspondingly benefit the public.
The last subject suggested is one that might well be added (with English literature and history) to every course of study in the University. Its object is to enable its students to arrange and present their views on any subject with clearness and vigor to examine and detect fallacies in their own or their opponent's arguments, and when so detected to trace them to their source, and so present them that they are likely to be admitted as fallacious. Various American Colleges have chairs page 29 on this subject, and the text-books used emphasise the fact that argumentation is not contentiousness—is not mere arguing for argument's sake. Such a subject would seem to be valuable in private life, and eminently so in any public position, from a Committee to a Cabinet.
These are suggestions that seem desirable from every point of view. If they were adopted a barrister would then have a much better training in law and in pleading than he now has, and than a solicitor has. There might then be some justification for the abolition of the admission of solicitors after five years' practice, quite irrespective of their knowledge or ability. Till the barristers' qualifications are reviewed there is no logical reason for the repeal of such provision. It would only mean the supplanting of an inadequate test by a still more inadequate one.
Any steps that are to be taken in the direction of such reform should be initiated by senior undergraduates and recently-admitted barristers. Any impartial observer must admit that an improvement can easily be effected. Such improvement cannot be expected as an outcome of a public demand, for the public knows nothing of the mysterious processes by which one qualifies for admission to the Bar. The older practitioners are largely indifferent and partly biassed, but probably such a movement, if earnestly urged, would meet with some measure of support from them. Is it not desirable to take some steps to initiate an enquiry that might result in permanent benefit both to students and to the public whom they hope to serve honestly and efficiently?