The Gazette 1979

GAZETTE

SEPTEMBER 1979

course training. Let me illustrate by an example. One of the problems associated with legal practice course training is how much substantive law should be taught as part of the course. Now it seems to me that the teaching of substantive law is wholly at variance with the proper objectives of legal practice course training. Nevertheless it does seem to be thought that some substantive law must be taught. Why is that so? I believe the problem is one that has been forced on Legal Practice Courses because of the way in which many Law Schools see their own role. Many see it as being to teach more and more law, and that is evidenced by the number of subjects that are required for the degree and the number of optional subjects offered. The result of this is to create in the minds of students the thought that unless they have been taught a particular area of law they cannot be expected to know it. And many of those who teach in legal practice courses have the same thought, namely that if students are to understand a particular aspect of the law they must be taught it. And this attitude in turn seems to breed in students a resistance to the thought that they ought to be able to discover and unfold for themselves new areas of law by the simple application of the learning and the intellectual processes that they have acquired in Law Schools. For my part, I would prefer to see Law Schools teaching less law, not more law, but teaching it in greater depth, with greater professional content and with greater emphasis on the intellectual processes that are common to all understanding of the law. Given that kind of education, a student should, theoretically at least, be capable of exploring and unfolding new areas of law for himself. Perhaps some help and guidance will be necessary, but this should be minimal. The problem here then is to define the objectives of Law School training and to integratethem with legal practice course training. It is a part, of integrating the whole legal educational process. It is not good enough any more to say, in general terms, that the Law School will be responsible for one part of legal education, the Legal Practice Course for another part, and the profession at large — which really means no-one at all — for the remainder.That way, I believe, lies fragmentation and en eventual breakdown of the whole process. There is obviously a need here for consultation and co-operation between all those involved in the process, between the Law Schools, the Legal Practice Courses, the Law Society, the Bar too (for I do not think they can afford to remain aloof from all this), and, Finally, perhaps, students — I at least have always found their contributions of discussions of this kind helpful and usually sound. Perhaps there is a need for a special body charged with the specific task of co-ordinating the various component parts of legal education, and of being ultimately responsible for its effectiveness. Its task would not be an easy one, but it is a job that 1 think must be done, if the course of legal education in the future is not to take an altogether different direction. Now I want to make it clear that nothing I have said here is intended as a criticism of any Law School in particular, and certainly not of any Law School here in Ireland. I am quite unfit to do that, and I have no wish to do so anyway. I offer them only as general comments for which ample support is to be found in the legal literature, and which is supported, to a greater or lesser extent, but my own observation of some Law Schools with which I 135

education, and, in particular, to define its relationship to legal practice course training. I readily concede the difficulty — and the genuine difficulty — of that task. To begin with there are the central questions of "core" subjects and the range of elective subjects, about which there is still considerable difference of opinion amongst academic lawyers generally, and often amongst the members of a particular Faculty. And then Law Schools also have to teach law to students who do not propose to practice at all, but who seek legal education for other purposes. That itself presents a problem. The treatment of subjects by law teachers is also a question on which there are still widely differing views and attitudes. Many teach in the way described by Professor Irwin Rutter in his article "A Jurisprudence of Lawyers Operations", where he wrote: " . . . law schools have been concerned substantially with the teaching of doctrine, with only incidental attention to professional legal operations. Legal doctrine embodying die rules of law, is one essential ingredient of lawyers' operations, but only an ingredient, greatly sterilised by its divorcement from professional operations. That sterilisation", he goes on to comment, "often approaches meaninglessness when the vehicle of doctrine is limited to appellate opinion". 9 The same point has been made by other academic writers. Professor Twining referred to it in his article "Pericles and the Plumber" where he said: "students . . . . are served appellate judgments as their staple diet;" and "curricula rarely, if ever, descend to even the level of courts of first instance to concern themselves with such matters as thr reasoning processes involved in drawing inferences from evidence or the intellectual processes of sentencing, to take but two examples". 9 ® And some Law School teaching took it must be said, does not even descent to the level of doctrines or rules, but seems more akin to a course in or the philosophy of law. The general aims of University education have been expressed in many ways. Thus Lord Scarman once said that "The job of the University is to fire and discipline the mind of the young" 10 and Lord Radcliffe has said that Law School education should be "something not less than a quickening awareness, continuously related to the Society (the student) lives in and by its own force associating him with changes or developments". 11 Those aims should not be denied, nor should Law School education be put into a straight jacket; and due recognition must be accorded to the legitimate exercise of academic freedom. But the final objective of Law School education must also be kept in mind, as must be the demands of Legal practice course training. I believe it is possible for a just balance to be achieved in all this, that the role of Law School education can be attuned to that of legal practice course training, and that some professional realism can be injected into Law School teaching, without in any way denying or lowering its proper standards. And I am not alone in thinking that. No less an authority than Karl Llewellyn saw no difficulty in wedding the liberal and professional in Law School teaching. Problems of Integration Legal Practice Courses inherit the products of our Law Schools, and the problems involved in having to do so can be considerable if Law School education is to any marked extent out of harmony with the objectives of legal practice