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The province of jurisprudence determined-again!

Published online by Cambridge University Press:  02 January 2018

Hilaire Barnett
Hilaire Barnett*
Affiliation:
Queen Mary and Westfield College, University of London
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Extract

This report presents the findings of the survey conducted in 1993/94, this survey being an updated version of one conducted in 1983/94. The present study has been expanded to cover Australian and Canadian (Common Law) universities, and as in previous surveys has been conducted primarily through the medium of a detailed questionnaire.

In each of the jurisdictions surveyed there exist parallel concerns about legal education and, of more direct interest here, the role of Jurisprudence and Legal Theory within the law curriculum. By drawing on data received from Australia, Canada and the United Kingdom and the literature on legal education, this article aims to provide a comparative study of the extent to which Jurisprudence features in the academic training of the next generation of lawyers, a large proportion of whom will enter a profession characterised by a shared common law tradition.

Type
Research Article
Information
Legal Studies , Volume 15 , Issue 1 , March 1995 , pp. 88 - 127
Copyright
Copyright © Society of Legal Scholars 1995

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References

1. My thanks are due to many: to all respondents, especially to those who contributed over and above the completion of the questionnaire; to Dr Michael Bryan for assisting with data collection from Australia; to Professors Kevin Gray and William Twining for their invaluable advice and suggestions.

2. Hilaire Barnett and Dianna Yach, (1985) 5 LS 151, hereafter referred to as Barnett and Yach. See also the earlier study by RBM Cotterrell and JC Woodliffe, (1974) JSPTL 73.

3. Responses were received from 19 Australian universities (ie, a response rate of 83%); 7 from Canadian universities (44%); 71 from UK universities (90%) of which 64 form the basis for analysis: 37 from ‘old’(95%), 27 from ‘new’ (79%) universities. The Colleges of the University of London have been treated as separate institutions. The Canadian responses have yielded too little detailed data for the purpose of meaningful statistical analysis. There is however sufficient data and literature available for useful comparative purposes. See Appendix I for a list of respondent universities.

4. Course synopses and related materials were requested: 24 universities supplied additional materials.

5. On legal education generally, see J Wilson A Third Survey of University Legal Education in the United Kingdom (1993) 13 LS 143.

6. D Weisbrot, Access to Legal Education in Australia, in Access to Legal Education and the Legal Profession, ed R Dhavan, N Kibble, W Twining, Butterworths 1989, p 85.

7. Australian Bureau of Statistics National Census, cited in D Weisbrot Australian Lawyers, Longman 1990.

8. National figures unavailable for that time.

9. DAA Stager and HW Arthurs Lawyers in Canada University of Toronto Press 1990.

10 45% at ‘old’, 55% at ‘new’ universities. Admissions for the Cpe course were 50%. See D Halpem Entry into the Legal Professions, The Law Society Research and Policy Planning Unit StudyNo 15, 1994.

11. In 1986, the Aboriginal and Torres Strait Islands population amounted to 1.43% of the total national population: D Weisbrot op cit n 6.

12. Australian Law Schools, A Discipline Assessment for the Commonwealth Tertiary Education Commission, Canberra 1987, hereafter referred to as Pearce.

13. BM Mazer, Access to Legal Education and the Profession in Canada, in Access to Legal Education and the Legal Profession, op cit n 6.

14. Op cit n 9.

15. See, eg, the University of Toronto Faculty of Law Calendar 1993–1994, p 60.

16. D Halpem op cit n 10; but cf N Kibble Access to Legal Education and the Legal Professions in England, in Access to Legal Education and the Profession, op cit n 6.

17. Ibid. p 19.

18. Pearce, Appendix 4.

19. Op cit n 6.

20. Op cit n 13 at p 129.

21. Op cit n 9.

22. Royal Commission on Legal Services, 1979 Cmnd 7648, cited in D Halpern op cit n 10 at para 5.1.

23. Entry Into the Legal Profession, op cit n 10 p 22.

24. see below p.

25. Op cit n 10 p 23.

26. At Bond, Deakin, Flinders, Griffith, James cook, Murdoch, Newcastle, New England (Northern Rivers, Lismore and Armidale), Northern Territory, La Trobe, Western Sydney, Wollongong.

27. D Pearce Legal Education: The Role of the Profession-Is the Pendulum Swinging? (1992) 66 ALJ 413.

28. Law and Learning: Report to the Social Sciences and Humanities Research Council of Canada 1983 p 25, hereafter referred to as Arthurs.

29. Cf the statistics for 1970: 1449 law graduates entering the legal profession: Report of the Committee on Legal Education (Ormrod Report) 1971, Cmnd 4595.

30. The Times 8 June 1994.

31. Recommended by the Ormrod Committee op cit n 29 para 112–113.

32. N. Kibble, op cit n 16.

33. D Halpem op cit n 10.

34. Limited opportunities still exist in some States for qualification through Admission Boards examination and through apprenticeship: D Weisbrot, op cit n 6.

35. D Pearce op cit n 27; cf the position in England where the law curriculum is dictated by the profession but the degree is not qualifying per se: Ormrod Report op cit n 29.

36. Ibid. para 2.10.

37. BM Mazer op cit n 13.

38. The position differs in Scotland with Honours being attained after a fourth year of study. On Joint Degrees see below.

39. Legal Practice Course for intending solicitors; the Bar Vocational Course for intending banisters.

40. Arthurs p 12.

41. Ibid. p 29/30 and on the significance of part-time faculty in Australian universities see D. Pearce, op cit n 27.

42. Pearce at para 1.50–1.51.

43. Law Society and CLE Preliminary Notice to Law Schools Regarding Qualifying Degrees, July 1993.

44. Pearce at lii; Summary p 4.

45. Higher Education, Cmnd 2154.

46. Op.cit n 29.

47. Royal Commission on Legal Services, Cmnd 7648.

48. A Time for Change: Report of the Committee on the Future of the Legal Profession.

49. Legal Services: A Framework for the Future, Cm 740.

50. For a critical commentory see P Birks, Adjudication and Interpretation in the Common Law: A Century of Change, (1994) 14 LS 156.

51. W Twining 1836 and All That (1987) 40 CLP 261 at 265.

52. On the Study of Law, BI Comm Vol I.

53. Arthurs p 36.

54. Pearce paras 186.188; Arthurs Ch 4.

55. See, inter alia, K. Llewellyn The Place of Skills in Legal Education, (1945) 45 Columbia Law Review 345; Pearce paras 1.61-1.65; Marre Report op cit, n 48. p 113/4; W Twining Legal Skills and Legal Education, 1987, Law Teacher; W Twining Taking Skills Seriously in Learning Lawyers' Skills, Butterworths, 1989.

56. At pa 2.3.

57. N MacCormick The Democratic Intellect and the Law (1985) 5 LS 172; MacCormick and Twining Theory in the Law Curriculum in W Twining (ed) Legal Theory and Common Law (Blackwell, 1986); A Hunt Jurisprudence, Philosophy and Legal Education (1986) 6 LS 292, The Role and Place of Theory in Legal Education (1988) 8 LS, 146.

58. Arthuts p 56.

59. See L Trackman Law and Learning (1983) 21 Osgoode Hall Law Journal p 554.

60. At para 1.80.

61. P Allott THES 21.8.87, p 9.

62. At p 108, para 2.117.

63. Ibid. at p 49, para 5.

64. Ibid. at p. 55, para 3, and see C Sampford and D Wood ‘Theoretical Dimensions’ of Legal Education-A Response to the Pearce Report (1988) 62 ALJ 32 p 32.

65. See Table I, below.

66. Bond, Griffith, James Cook, Macquarie, Melbourne, UT Sydney.

67. J Goldring New Methods for New Times Colloquium on Flexible Teaching and Learning in Law, University of South Australia, March 1994.

68. Ibid.

69. Universities of Alberta and Western Ontario.

70. British Columbia, Dalhousie, Queen's, Toronto, Victoria.

71. The course is intensively taught in four one-week periods during which all other teaching is suspended. Each component is assessed by written assignment.

72. A factor often cited as one explanation for the low numbers reading Jurisprudence on optional courses.

73. Hertfordshire 1993; Lancaster 1988; North London 1992, Thames Valley.

74. Greenwich 1993; Strathclyde 1991, Swansea 1992.

75. Northern Territory 1991.

76. ANU, 1989.

77. Bond 1989; James Cook 1991; Wollongong 1993.

78. Tasmania.

79. The Democratic Intellect and the Law op cit n 57.

80. See Table III below.

81. Legal Theory as part of Elements of Law.

82. Compulsory only for intending barristers.

83. History and Philosophy of Law.

84. Law and Society.

85. History and Philosophy of Law.

86. Legal Theory.

87. Students must read either Legal Theory or Law and Social Theory.

88. No Jurisprudence per se; Legal Reasoning is compulsory; Law & Social Theory and Economic Analysis of Law optional.

89. Distortions in the figures resulted from optional courses being offered in alternative years.

90. See Table VI below.

91. See para II.4 above.

92. Op cit n 57; see also MacCormick and Twining op cit n 57.

93. Op cit n 57.

94. Additional materials.

95. Op citn 30 at para 101; emphasis added.

96. Arthurs Chap 4, p 50; see also M Partington Legal Education in the 1990s (1992) 19 Journal of Law and Society, 174.

97. Op cit n 68.

98. Arthurs, p 55.

99. MacCormick and Twining Theory in the Law Curriculum op cit n 57; Arthurs p 50.

100. Arthurs p 50, and see W Twining Pericles and The Plumber (1967) 88 Law Quarterly Review p 396.

101. N MacCormick, op cit n 57.

102. O W Holmes, The Path of Law, 10 Harv LR 457, 476 (1896–97).

103. See J Goldring Babies and Bathwater: Tradition or Progress in Legal Scholarship and Legal Education? [1987) 17 W Aus LR 216.

104. Legal Theory and the Practical Lawyer, [1941) MLR 103.

105. On Teaching Law 3 Stan. Law Rev. 35 (1950), cited in R S Summers Fuller on Legal Education, J Legal Educ 8 (1984).

106. Op cit n 57.

107. Barnett and Yach p 167.

108. Op cit n 57.

109. Cotterrell and Woodliffe, op cit n 2. Discrepancies in figures due to exclusion of ‘not read’ figures.

110. Specific data not available.

111. UK data only.

112. Discrepancies in figures due to omission of ‘brief mentions’ of school/theory/topic.

113. Estimated figures.

114. Estimate.

115. But note that many universities offer separate courses in Medical Ethics.

116. As above (criminology, sentencing and penology).

117. Estimate.

118. The Politics of Jurisprudence. 1989, Ch 8, p 228/229.

119. Compared with 69 per cent in 1984.

120. Cf 1984: 31 per cent.

121. Cf 1984: 84 per cent.

122. Cf 1984: seven per cent.

123. Cf 1984: 61 per cent.

124. Cf 1984: 23 per cent.

125. Cf 1984: two per cent.

126. Barnett and Yach p 158.

127. Cf 1984 74 per cent.

128. Cf 1984 nine per cent.

129. Cf 1984 17.5 per cent.

130. See below.

131. Cf 1984: 65 per cent.

132. Cf 1984: 14 per cent.

133. Cf 1984: 46 per cent.

134. Cf 1984: 23 per cent.

135. Cf 1984: 14 per cent.

136. Lloyd Introduction to Jurisprudence, 5th ed. p 716.

137. See, inter alia, P D Carrington Of Law and the River, 34 J Legal Educ 222 (1984); T Finman CLS, Professionalism, and Academic Freedom: Exploring the Tributaries of Carrington's River, 35 J. Legal Educ. 180 (1985).

138. Carol Smart Feminist Jurisprudence, in Dangerous Supplements: Resistance and Renewal in Jurisprudence ed P Fitzpahick, 1991, p 133.

139. Although American Realism must be viewed in light of the emergence of CLS.

140. W Twining (ed) Legal Theory and Common Law, p 3.

141. Barnett and Yach p 154.

142. Space does not permit detailed information to be given: the author will be pleased to supply this on request.

143. Barnett and Yach p 156.

144. Aberdeen, Brunel, Cambridge (excepting Medicine and Veterinary studies), Edinburgh.

145. Aberystwyth, Glamorgan, Leeds, London Guildhall.

146. Durham, Exeter, North London, Plymouth, SOAS, Sussex. At Dundee students may take any course offered by the Arts and Social Science Faculty.

147. Anglia, Birmingham, Cardiff, Central Lancashire, DeMontford, Greenwich, Humberside, Keele, Kingston, KCL, Lancaster, Mcester, Northumbria, Oxford Brookes, Reading, Sheffield Hallam, Southampton, Staffordshire, Warwick, Wolverhampton.

148. Aberystwyth, Cambridge, East Anglia, Exeter, Glasgow, KCL, Leeds, Liverpool John Moores, Oxford, Sheffield, SOAS, Strathclyde.

149. For the most part, the data from Canada does not yield this information.

150. Twenty-five UK, seven Australian.

151. Nineteen UK, 13 Australian and Canadian.

152. Op cit n 2, p 87.

153. Many respondents state alternatives.

154. Cotterrell and Woodliffe, op cit n 2, p 77.

155. Barnett and Yach p 163.

156. At Melbourne students may elect 100 per cent examination as an alternative.

157. Australia and UK combined.

159. No longer ‘dangerous supplements’?.

160. The commitment to Jurisprudence and Legal Theory is evidently far greater in Scotland see, for example, the Honours Degree in Jurisprudence at the University of Glasgow.

161. W Twining, op cit n 100.