The Gazette 1979

SEPTEMBER 1979

GAZETTE

and initiate of his art". 6 Characteristics of the Profession

purpose, and the difficulty springs essentially from the complex nature of the kind of person he has to be and of the work he is called upon to do. And the difficulty is compounded, I fear, by the various ways in which one may look upon a lawyer and his work. Thus one may look upon him in terms of the many and varied roles he often plays in our society — the statesman, the lawgiver, the person of vision, the redoubtable defender of our basic liberties, and so on. In {heir paper, Legal Education and Public Policy: Professional Training in the Public Interest, 1 Professors Laswell and McDougall saw him essentially as a policy maker, a leader in business, in government, in international affairs, and they would direct his education to that end. To one writer at least this would be nothing less than "a thinly disguised elitist programme for the training of national leaders, the sort of thing that might emerge, if, in 1984, Plato's Academy were taken over by M.I.T. with Jeremy Bentham as Director". 3 And then one may look upon the lawyer in terms of the specific qualities it is said he should have. He should be a person, it may be said, of "intellectual discipline, detachment, breadth of perspective, (with) an interest in human nature and a capacity for independence and critical thought". 4 Bracton, you may recall, thought of lawyers in even more exalted terms. He spoke of them as dedicated to the art of the good and equitable: they are like priests, he said, "for they worship justice and minister sacred rights". Now no doubt lawyers, or at least some of them, are all those things. But I do not think they are the things to which, primarily, we should have regard for the purpose of defining the lawyer as the object of legal education. I think we must put him on a much more pedestrian level. I think we must look upon him as what, in essence, I believe he is: a person with a specialised knowledge of his subject — the law — and of certain highly specialised skills and techniques that are required for the application of that knlwledge to the business of the law, namely, the adjusting of human and social relationships. The work of a lawyer is, I believe, in large measure that of a highly specialised craftsman. That is not a view that always and in all places receives ready acceptance, though I suspect that more and more people are coming around to that point of view. Nevertheless, there still seems to be some deep seated reluctance in some places to accept that a lawyer is in some sense a craftsman. 5 Why that should be so, I do not quite know, unless it be traced to some kind of special aura that has grown up, (or been fostered) around a lawyer's work; an aura that deems it anathema to regard it as, in any way, the exercise of a mere craft. But whatever the reason, I think it is time the notion was dispelled. In my view, the mark of a good lawyer is that he is a master not only of his subject, but also of all the craftsmanship that is necessary for its application to a particular legal problem — what Lord Radcliffe once called the "sheer professional expertise" of the practice of law. And may I here recall for you those famous words of the late Judge Learned Hand in his final and moving tribute to those who had taught him law in his youth at Harvard: "From them", he said, "I learnt that it is as craftsmen that we get our satisfactions and our pay". But then, as has been commented, "by Learned Hand's exacting standard, a craftsman in law was a very master

And I do not fear there is any threat to the higher ideals of the law in looking upon the work of the lawyer in this way; I do not fear that the future will fail to produce lawyers of the calibre of those of the past, or of the present. As craftsmen, they should be better. As leaders, as people of inspired vision, dedicated to the promotion of the common good, I am sure the lawyers of the future will not be found wanting in these qualities, for the fact is that in all ages, and in all countries, the law has never failed to attract to its ranks men and women of the highest intelligence, of the most singular qualities of mind and spirit. "There is so much in the study for the practice of the law", said Lord Radcliffe in a passage to which I have already made a brief reference, "to absorb the man of intellect, so much history, so much argument to engross the reason, so much of sheer professional expertise". 7 The law will not fail to continue to attract people of that kind; its highest ideals and principles, I believe, will be safe in their hands. But the world needs lesser mortals too. In this, at least, all lawyers should be united, that they are competent craftsmen of their art. The analysis of a lawyer's work that is the most useful for our present purpose, is, I believe, that which appears from the paper written by Brandeis J. of the United States Supreme Court as far back as 1914, which he called "Business - a Profession". And it is pleasing to note that Sir Roger Ormrod himself has recently again drawn attention to it. In that paper Mr. Justice Brandeis set out to identify those characteristics which he thought distinguished a profession from other occupations. If we look at those characteristics, I think they serve very well to identify a lawyer for our purposes — as the object of legal education. He said there were five such characteristics — 1. A highly complex body of knowledge, combined with the ability to use intellectual processes which are, at least to some extent, peculiar to the profession; 2. Certain practical skills and professional techniques without which the knowledge cannot be applied in the practice of the profession; 3. The capacity to use such knowledge from day to day to solve other people's practical problems arising in the sphere of the profession; 4. A particular kind of relationship with clients arising from the complexity of the subject matter which renders the client to a large extent dependant upon the professional man; 5. A self-imposed code of professional ethics intended to regulate this dependant relationship. It is a person then, who has or should have, those characteristics that I take to be the object of legal education. Academic and Professional Techniques If we accept that, the next question we must ask ourselves is: how best may those characteristics be developed in a person; how best may that knowledge, those skills and techniques be imparted. Now it would be difficult to maintain that there is, or

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