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The Renewal of the Liberal Law Degree

Published online by Cambridge University Press:  16 January 2009

Bob Hepple
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Extract

I propose to examine the underlying philosophy of the recent First Report on Legal Education and Training by the Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC), and also some of the practical implications of the Report, particularly for university law schools.

It was a stimulating experience to be able to work on this Report which reflects the collective wisdom and experience of all seventeen members of ACLEC and draws on the views expressed by its consultation panels and the large number of respondents to its consultation papers. It is important to stress that the Committee's expertise is not simply that of the two law teachers on the Committee or the two barristers, two solicitors and two judges, but also that of the lay majority of the Committee whose experience is that of consumers of legal services, social researchers, educators and in other professions. In reflecting this breadth of experience, it is a Report unique in the annals of British legal education.

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Articles
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The Cambridge Law Journal , Volume 55 , Issue 3 , November 1996 , pp. 470 - 487
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Copyright © Cambridge Law Journal and Contributors 1996

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References

1 The Lord Chancellor's Advisory Committee on Legal Education and Conduct, First Report on Legal Education and Training, April 1996. The Committee's review was undertaken under the provisions of the Courts and Legal Services Act 1990, s. 20(1) and Sched. 2. The Report deals with the first degree in law, conversion courses for non-law graduates, common professional legal studies and the specific training of intending barristers and solicitors up to the point of initial qualification. Later reports are intended to cover continuing professional development, and the education and training of paralegals.

2 The Committee also had the benefit of a number of recent academic studies, of which particular mention may be made of Hamlyn, William Twining's Lectures, Blackstone's Tower: The English Law School (London, 1994), and Birks, Peter (ed.) Reviewing Legal Education (Oxford, 1994).Google Scholar

3 Report of the Committee on Legal Education, Cmnd. 4595 (March 1971). In contrast to ACLEC, 12 of the 13 members of this Committee were lawyers, 6 of them senior academics.

4 See generally, van Caenegem, R.C., Judges, Legislators and Professors: Chapters in European Legal History (Cambridge, 1987), pp. 53–65, 113–126.CrossRefGoogle Scholar

5 “Of the Study, Nature and Extent of the Laws of England”, published as the Introduction: Section 1 of the Commentaries on the Laws of England, vol.1.

6 Report from the Select Committee on Legal Education (1846), B.P.P., vol X (perhaps significantly, as Professor Gower has pointed out in (1950) 13 M.L.R. 137, in the same volume as a Report from the Select Committee on the Disposal of Metropolitan Sewage Manure!).

7 Ibid., p. xxxiv.

8 Ibid., p. xxxi.

9 Ibid., p. v. Starkie also reported that the “hour of the lecture interferes with the College hours”. This is reminiscent of the undergraduate who complained that lectures on a Wednesday interfered with both weekends!

10 Ibid., p. viii.

11 [Baker, J.H.], 750 Years of Law at Cambridge (Faculty of Law, University of Cambridge, 1996), p. 9.Google Scholar Amos's experience should serve as a warning to me, since I held his Chair at UCL (1982–93) before returning to Cambridge, and I saw no undergraduates at all at this lecture! There were, however, over 100 law teachers and senior representatives of the legal profession present, a healthy sign that legal education is now taken very seriously.

12 Op. cit., p. viii.

13 Amos, Andrew, An Introductory Lecture on the Laws of England, delivered in Downing College, Cambridge, on 23 October 1850 (Cambridge, 1850).Google Scholar [I am grateful to Professor J.H. Baker Q.C. for this reference.]

14 Op. cit., pp. 50–51n.

15 Maitland, F.W., “Law at the Universities” Collected Papers, vol. III (Cambridge, 1911) 419 at p. 427.Google Scholar Maitland made the penetrating comment elsewhere (op. cit., pp. 78–79) that “the taught system will be very much tougher than the untaught”.

16 Dicey, A.V., Can English Law be Taught at the Universities? (London, 1883).Google Scholar

17 Kahn-Freund, O., “Reflections of Legal Education”, (1966) 29 M.L.R. 121 at p. 123; Selected Writings (London, 1978), 359 at p. 360.Google Scholar

18 Final Report of the Royal Commission on University Education in London. Cd. 6707 (1913) para. 337.Google Scholar

19 Op. cit., chap. 1, para. 9.

20 Hazeltine, Harold D., “The Present State of Legal Education in England”, (1910) 26 L.Q.R. 17 at p. 34.Google Scholar

21 Report of the Legal Education Committee. Cmd. 4663 (1934), para. 10.

22 So described by L.C.B. Gower, (1950) 13 M.L.R. at p. 147.

23 McNair, A.D., “Law Teaching and Law Reform” (1934) 11 J.S.P.T.L. 1. The reformist movement in Cambridge is also to be seen in Jackson, R.M., The Machinery of Justice in England (Cambridge, 1940) pp. 312–321.Google Scholar

24 Wade, E.C.S., in his inaugural lecture at Cambridge entitled “The Aims of Legal Education” (1945–1947) 9 C.L.J. 286. He urged (at pp. 288, 289)Google Scholar that we should “teach law as a great human institution serving social and economic ends” and “in relation to its place in the world in which we live”; he wanted “to sharpen the critical faculties of the lawyers of tomorrow”.

25 Stallybrass, W.T.S., “Law in the Universities” (1948) 1 J.S.P.T.L. (NS) 157.Google Scholar

26 Ibid., at pp. 160, 161.

27 Abel-Smith, B. and Stevens, R., Lawyers and the Courts (London, 1967), p. 367.Google Scholar

28 Op. cit., p. 164.

29 Op. cit., p. 163.

30 Op. cit., p. 163.

31 Gower, L.C.B., “English Legal Training” (1950) 13 M.L.R. 137.Google Scholar

32 Ibid., p. 177.

33 Ibid., p. 171.

34 Ormrod Report, para. 103.

35 Twining, op. cit., p. 35. He points out that the Committee failed “to carry out Lord Gardiner's agenda of creating an integrated and unified system of legal education and training”. This agenda was implicit in the terms of reference, and also advocated in Gardiner, G. and Martin, A., Law Reform NOW, (London, 1963), chaps. 1 and 11.Google Scholar

36 Ormrod Report, para. 85.

37 ACLEC Report, para. 2.6, and generally, paras. 4.11–19.

38 Ibid., para. 2.6 and generally, paras. 4.34–37.

39 Ibid., paras. 2. 11–13.

40 Ibid., para. 2.2, and see too para. 2.4.

41 Ibid., para. 2.2.

42 Ibid., para. 2.4.

43 Ibid., p. 72 (annexure to chap. 4) for an illustrative statement.

44 Ibid., para. 4.33.

45 See Jones, Gareth, “Traditional Legal Scholarship: a Personal View”, in Birks, P.B.H. (ed.) What are Law Schools For? (Oxford, 1996) pp. 9–15.Google Scholar

46 Kahn-Freund, op. cit., p. 366: “he must not be allowed to go around it by escaping into talk about policies, he must go through it”.

47 Steyn, Johan, “Does Legal Formalism Still Hold Sway?”, The Bentham Club UCL: the 1996 Presidential Lecture, (1996) Current Legal Problems [forthcoming].Google Scholar

48 Beatson, J., “Does the Common Law Have a Future?”, an inaugural lecture delivered in the Faculty of Law, University of Cambridge, 29 April 1996. [To appear in the Journal in July 1997.]Google Scholar

49 Pepper (Inspector of Taxes) v. Hart [1993] AC 593; Melluish (Inspector of Taxes) v. BMI (No. 3) [1995] 3 W.L.R. 630; Three Rivers District Council v. Bank of England (No. 2) [1996] 2 All E.R. 363.

50 For a brief general introduction, see Miers, D.R. and Page, A.C., Legislation, 2nd ed. (London, 1990).Google Scholar

51 Caparo Industries plc v. Dickman [1990] 2 A.C. 605.

52 White v. Jones [1995] 2 W.L.R. 187.

53 Murphy v. Brentwood District Council [1991] 1 A.C. 398.

54 See the devastating critique by Markesinis, B.S. and Deakin, Simon, “The Random Element in their Lordships' Infallible Judgment: An Economic and Comparative Analysis of the Tort of Negligence from Anns to Murphy” (1992) 55 M.L.R. 619.Google Scholar

55 Howarth, David, A Textbook on Tort, (London, 1995), pp. 308–331.Google Scholar

56 Markesinis, B.S. and Deakin, Simon, Ton Law, 3rd ed. (Oxford, 1994), pp. 22–35, 83–118.Google Scholar

57 This is the approach favoured by one of our greatest comparatists, Lipstein, Kurt, in The Common Law of Europe and the Future of Legal Education (eds. de Witte, B. and Tucker, C.) (Deventer, 1992), pp. 255–263.Google Scholar In the particular example given, this has been facilitated by Markesinis, B.S., The German Law of Torts, 3rd ed. (Oxford, 1994), p. 173et seq.Google Scholar

58 Johnston, David, Inaugural Lecture delivered in the Faculty of Laws, University of Cambridge, 1 February 1996. [To appear in the Journal in March 1997.]Google Scholar

59 Markesinis, B.S., “The Comparatist (or a Plea for a Broader Legal Education)”, an inaugural lecture delivered in the University of Oxford, 23 February 1996, to be published in the Yearbook of European Law (forthcoming 1996);Google Scholar see more generally, Wilson, G., chap. 15 in (Wilson, ed.) Frontiers of Legal Scholarship (London, 1995), esp. p. 230,Google Scholar and Markesinis, B.S., chap. 1 in (Markesinis, ed.) The Gradual Convergence (Oxford, 1994), esp. at p. 21.Google Scholar

60 This draws on the ACLEC Report, para. 1.13.

61 Williams, B., “The Idea of Equality” in (Laslett, P. and Runciman, W.G. eds.) Philosophy, Politics and Society (London, 1962), p. 110.Google Scholar

62 Dworkin, R., “What is Equality?” (1981) 10 Philosophy and Public Affairs 185, 283.Google Scholar

63 E.g. the contributions by Bell, Derrick, Lacey, Nicola, Parekh, Bhikhu and Pitt, Gwynneth in (Hepple, B. and Szyszczak, E. eds.) Discrimination: The Limits of Law (London, 1992), chaps. 1, 7, 15 and 16.Google Scholar

64 See esp. MacCormick, N. and Twining, W., “Theory in the Law Curriculum” in (Twining, W. ed.) Legal Theory and Common Law (Blackwell, 1986);Google Scholar and for a comprehensive recent survey, Barnett, Hilaire, “The Province of Jurisprudence Determined—Again!” (1995) 15 L.S. 88.Google Scholar

65 ACLEC Report, para. 1.19; and see further, Cranston, R. in (Cranston, ed.) Legal Ethics and Professional Responsibilities (Oxford, 1995) at p. 32.Google Scholar

66 Maitland, Collected Papers, vol. Ill, p. 427.

67 ACLEC Report, paras. 4.22–33.

68 Ibid., paras. 4.34–37.

69 A view expressed by Hoffmann, Lord at ACLEC's Third Consultative Conference on the Review of Legal Education, July 1995, Conference Proceedings, p. 3 (para. 11).Google Scholar

70 See generally, Barnett, Ronald, Improving Higher Education (Srhe and Open University, 1992), esp. pp. 189–193.Google Scholar

71 Legal Education and Professional Development. Report of the Task Force on Law Schools and the Profession: Narrowing the Gap [the MacCrate Report], American Bar Association, 1992, pp. 138–141 lists 47 “fundamental lawyering skills” and 11 “fundamental values of the profession”. There is no shortage of such lists in England: e.g. Report of the Committee on the Future of the Legal Profession: A Time for Change [the Marre Committee], General Council of the Bar and Law Society,1988, produced a “provisional list”, as did the Law Society, Training Tomorrow's Solicitors (1990). See generally, Philip A. Jones, Competences, Learning Outcomes and Legal Education, Institute of Advanced Legal Studies, 1994.

72 Chorus from The Rock.