The Spike [: or, Victoria University College Review 1957]
Legal Education in the University
Legal Education in the University
Every Year the Society of Public Teachers of Law (to which a substantial proportion of law teachers throughout the Commonwealth belongs) holds a conference at some place in the United Kingdom. It is customary for the Society's President to deliver on that occasion a presidential address, and the President for the time being usually takes the opportunity to make some observations on the general problem of legal education. A reader of the presidential addresses delivered since the Second World War will be struck by the fact that repeated reference is made to the question whether Law is a fit subject for university study. It is true that these addresses invariably contain a more or less spirited defence of the place of Law in the university. The curious thing, in the light of the historical fact that the teaching of Law was a substantial part of the raison d'être of the mediæval university, is that there should be any doubts expressed on the subject.
It is not only their place in the university which English law teachers have had cause to doubt in the past. There has also been the problem of their place in the legal profession. In a contribution to the discussion on the presidential address to the Society in 1950, Professor J. L. Montrose of the Queen's University, Belfast, neatly summed up the dilemma of the university teacher of law in England: "His colleagues in the university still question his right within the university because his teaching is too technical, and his colleagues in the profession still doubt the utility of his teaching because it is too theoretical."
Here in New Zealand the teacher of law is more secure. He may feel with the English teacher that his professional brethren, actively engaged in the practice of the law, may tend to underestimate the value of his contribution to the training of young lawyers. He may indeed in moments of depression wonder whether the university degree course in law is regarded as anything more than a hurdle which must be surmounted before a young man can enter upon the practice of a profession whose fundamentals he has learnt in the time-honoured way of apprenticeship (though without benefit of articles). But he never has any doubts as to the appropriateness of including the study of law in the university curriculum: nor do his colleagues appear to regard him as a kind of semi-technical outsider admitted only on sufferance, and perhaps by force of tradition, to the fellowship of higher education.
It is not therefore my purpose in this brief article to justify the teaching of law in the university. But it does seem worth while to try to set down very briefly, by way of exposition rather than justification, a statement of the aims (or perhaps it would be better to say, the aims and achievements) of legal education. I should perhaps add that this is a personal statement and that I do not claim in what follows to be expounding the views of the Law Faculty in this College nor of the teaching branch of the legal profession in New Zealand.page 27
It is clear to begin with that the aim of legal education is primarily vocational. Its principal purpose is to provide the would-be lawyer with the intellectual tools which he will need for the job he is to do in life. But many of these tools are what I may call "general purpose" tools; they are adaptable not only to the needs of the lawyer, but also to those of such divers orders of society as the business man, the social worker, the political scientist (or the practical politician), and the administrator. Consider for example this list, prepared by a distinguished member of the Faculty of the Harvard Law School, of the qualities which law school training should produce:
|1.||Fact consciousness. An insistence upon getting the facts, checking their accuracy, and sloughing off the element of conclusion and opinion.|
|2.||A sense of relevance. The capacity to recognise what is relevant to the issue at hand and to cut away irrelevant facts, opinions, and emotions which can cloud the issue.|
|3.||Comprehensiveness. The capacity to see all sides of a problem, all factors that bear upon it, and all possible ways of approaching it.|
|4.||Foresight. The capacity to take the long view, to anticipate remote and collateral consequences, to look several moves ahead in the particular chess game that is being played.|
|5.||Lingual sophistication. An immunity to being fooled by words and catch-phrases; a refusal to accept verbal solutions which merely conceal the problem.|
|6.||Precision and persuasiveness of speech. That mastery of the language which involves (a) the ability to state exactly what one means, no more no less, and (b) the ability to reach other men with one's own thought, to create in their minds the picture that is in one's own.|
|7.||And finally, and pervading all the rest, and possibly the only one that is really basic: self-discipline in habits of thoroughness, an abhorrence of superficiality and approximation.|
This is in my view an almost perfect summary of the principal "intellectual tools" of the lawyer. No one would disagree that a man who has acquired these qualities is truly an "educated" man. Insofar as the teaching of law aims to produce, and does produce, these qualities in its graduates, it can be claimed that legal education supplies not merely a vocational but also an excellent general education.
It must be conceded, in the second place, that (apart from the required Arts units) the prescriptions for the subjects of the LL.B. degree present in the main a fearsome array of narrowly technical learning. The outside observer may well be pardoned for supposing that the student will emerge from the course stuffed to the brim with arid learning about rules and principles and statutes and cases. He may be pardoned for drawing the further conclusion that a person laden solely with information of this sort can hardly be said to have a good general education.
It would be possible to refute such a view merely by pointing out that a substantial body of modern educational opinion now insists that the emphasis of liberal education should no longer be on information but on competence. But the true nature of legal education is seen in better perspective when it is realised that no page 28 teacher of law worth his salt ever confines himself nowadays to the technical limits of his subject. He cannot stray far outside them, of course. A teacher of criminal law must ensure that his students have as thorough a knowledge as possible of the statutes which define the kinds of human behaviour which will be regarded as criminal and prescribe both generally and specifically the kinds of punishment which are appropriate to various kinds of criminal behaviour, as well as of the ways in which Courts have interpreted and applied these statutes. A teacher of the law of torts must equally ensure that his students are thoroughly familiar with the leading cases and doctrines which establish the circumstances in which a man can be made to compensate another for harm which has occurred to the latter by the former's act or default. But it is in my view impossible for a teacher of criminal law to avoid giving his students some insight into the psychological and sociological problems which lie behind the framing and application of criminal statutes; and it is impossble to teach torts effectively without giving students a glimpse of the questions of history, of economics, of sociology which lie behind the facade of legal rules and Court decisions which form the immediate subject matter of the course. And what is true of criminal law and torts is true of every other subject in the course.
It is not that the teacher of law has the time or the equipment to deal in detail with the deeper problems he raises. If, as I believe, one of the important tasks of education is to stimulate the student's curiosity, to point out to him the paths he may follow, the doors he may seek to unlock, and where he may find the keys, it is my contention that the study of law, which has for its subject almost the whole range of human behaviour in society, is peculiarly fitted to that task.
What I want to say about this aspect of legal education has never been better expressed in my view than by that great jurist and great American, Mr. Justice Holmes. At the conclusion of a lecture on "The Profession of the Law," delivered to undergraduates of Harvard University on 17 February 1886, he asked this question, "How can the laborious study of a dry and technical system, the greedy watch for clients and practice of shopkeeper's arts, the mannerless conflicts over often sordid interests, make out a life?" And he answered his own question thus: "The law is the calling of thinkers. But to those who believe with me that not the least godlike of man's activities is the large survey of causes, that to know is not less than to feel, I say"—and I say no longer with any doubt"—that a man may live greatly in the law as well as elsewhere; that there as well as elsewhere his thought may find its unity in an infinite perspective; that there as well as elsewhere he may wreak himself upon life, may drink the bitter cup of heroism, may wear his heart out after the unattainable. All that life offers any man from which to start his thinking or his striving is a fact. And if this universe is one universe, if it is so far thinkable that you can pass in reason from one part of it to another, it does not matter very much what the fact is. For every fact leads to every other by the path of the air. Only men do not yet see how, always. And your business as thinkers is to make plainer the way from some thing to the whole of things; to show the rational connection between your fact and the frame of the universe. If your subject is law, the roads are plain to anthropology, the science of man, to political economy, the theory of legislation, ethics, and thus by several paths to your final view of life. It would be equally true of any subject. The only difference is in the ease of seeing the way. To be master of any branch of knowledge, you must master those which lie next to it; and thus to know anything you must know all."page 29
In the third place, and finally, we come to the question of moral values in education. It is not uncommon to reproach the lawyer with the fact that his training is substantially directed to enabling him to produce the best possible arguments in support of bad cases which in truth deserve no support at all. It is less commonly realised that it is this very insistence that, before any judgments whatever are made, both sides of any case shall be as fully and frankly argued as possible that has been one of the seminal ideas of Western democracy. Rashdall's view of the contribution which the lawyers made to the later Middle Ages has point here:
"From a broad political and social point of view one of the most important results of the universities was the creation, or at least the enormously increased power and importance, of the lawyer-class. Great as are the evils which society still owes to lawyers, the lawyer-class has always been a civilising agency. Their power represents at least the triumph of reason and education over caprice and brute force."
Reason and education can never triumph over caprice and brute force unless the fullest liberty is given to free enquiry. Over and over again the legal profession has stood as one of the bulwarks safeguarding this essential condition of democratic life. Some years ago Dean Griswold of the Harvard Law School was visiting New Zealand, at a time when McCarthyism in the United States was running riot and, to the outside observer, civil liberties seemed at their lowest ebb. I asked him what part the lawyers of the United States had to play in the dispute. His reply, delivered with the greatest deliberation, was to the effect that if it had not been for the legal profession in America there would now be no civil liberty worth speaking of.
It is, moreover, simply not true that the end of legal education is to produce men who are moral relativists. No one can study any branch of English law against its historical and social background without realising that in the law as it develops we find the articulation of the moral sense of the community in its striving after justice. At the heart of every decision, every statute, is an attempt, however imperfectly realised, to do justice between man and man. No law student can emerge from the university with a complete indifference to moral values. The study of what Professor Edmond Cahn of the New York University Law School has recently called "The Moral Decision" is an integral part of the study of law in every law school worthy of the name. It is also a vital part of what is generally described as a liberal education. Here too there is no shadow of doubt as to the place of law in the curriculum of the university.
E. K. Braybrooke