Legal science or law-lite?

“Law isn’t what I would call an academic subject…. Law is just a question of knowing it or not.” So said John Mortimer, as quoted by Peter Birks. Birks himself adds the following story: “At a recent conference for East Anglian sixth-formers interested in careers in law, the Law Society [of England and Wales’] official video contented itself with from time to time flashing a written message across the screen assuring the young audience that it was not necessary to read law to become a solicitor. The Bar’s contribution, in the person of Patrick Phillips QC, was more forthright. He told the sixth-formers who had gathered to hear him that a law degree was a complete waste of time.” (See Birks, Examining the Law Syllabus: Beyond the Core (1993), pages 3 and 17.)

These quotations illustrate the traditional English attitude to legal education. The academic study of law is more or less pointless. Law is a practical matter that can be learnt only in practice. Perhaps there is some groundwork that has to be mastered, but that is mainly memory work. Law is not an academic subject. A person who wants to go into the law would be better off studying at university something intellectually worth while. Most English judges do not have a law degree. As for legal academics, with some exceptions their status in England has tended to be low. Other academics generally have regarded them as not real academics, while practitioners have regarded them as not real lawyers.

A foreign concept?

The continental tradition was and is different. There law has been one of the main academic subjects ever since universities emerged in the high middle ages. Law is seen as a learned subject. Rechtswissenschaft is not a problematic word in German, but sounds strange in English: “legal science”. In England the oracles of the law were the judges: on the continent they were the professors.

What about Scotland? Law did not really develop as an important subject in the Scottish universities until about the beginning of the 18th century. Before then, law students went to continental universities. The new law schools which developed after 1700 were, not surprisingly, based on the continental ones, and especially on the Dutch. They were smaller, the student body was almost wholly Scottish, and overall they were not so good. But legal education in Scotland was in its general pattern much like continental legal education. And the views of the professors had a weight which was like that of the continental professors. The “institutional writers” were not a tartan-and-heather phenomenon, but a natural part of the system.

But there were also some important differences from the continental pattern. In Scotland to qualify as a legal academic it was sufficient to be an advocate. The advocate was regarded as someone who had mastered the learned law. (Here one sees a difference from the English barrister.) The old idea still survives to the extent that to be an advocate you have to pass an examination in Roman law, even if this no longer proves anything more than a knowledge of the elements. But although in the course of the 19th century it ceased to be true that to be an advocate necessarily meant command of the learned law, the idea survived that to be an advocate was sufficient qualification to become an academic. (Exceptions tended to be limited to those teaching conveyancing.) Indeed, not only was it sufficient, but it was also virtually necessary – if not as a formal requirement. This system was, of course, absurd. It resulted in 1938 in Edinburgh’s Chair of Civil Law, then in the gift of the Faculty of Advocates, being given to an academic nonentity of an advocate in preference to jurists of international standing. And in 1947 the Chair of Scots Law was given to an advocate whose teaching method was to read out verbatim, at dictation speed, Gloag and Henderson’s Introduction to the Law of Scotland.

Forces at work

Though the system was unsatisfactory, it had its strengths. It was a system that could appoint as successive holders of the Chair of Scots Law at Edinburgh John Erskine, David Hume and George Joseph Bell. And even at its worst it at least ensured that those who taught in the Scottish law schools had a broad knowledge of the law of Scotland, and at least some knowledge of Roman law.

The system just described existed, with some variations, until the introduction of the full-time LLB in 1960. That development, together with the wind of change which began to blow through British universities about that time, sent the old system into rapid decline. In terms of staff appointments, several milestones were quickly passed. First it ceased to be necessary to be an advocate. Next it ceased to be necessary to be qualified in Scots law. Then it ceased to be necessary to have a knowledge of Scots law. Finally it ceased to be necessary to have a knowledge of law. Law schools began to appoint sociologists, economists, philosophers and political scientists. These appointments were, it is true, not to the exclusion of lawyers. But as time went on three separate forces have made the appointment of those with a legal qualification in Scots law decreasingly likely.

The first is the continuing erosion of academic salaries, making it harder to attract those who qualified for a non-academic career. The second was globalisation. The chances that a Scottish-trained applicant will be successful, unless the appointment is tied to Scots law, have declined sharply as the academy has become globalised and as the elite universities (using the term in the US sociological sense) have become increasingly uncoupled from the communities in which they were until recently embedded. The Scottish law school has thus become – like other university departments – staffed increasingly by those who are not Scottish-trained. (Of course there are also great benefits here.)

The third reason is the RAE, three letters that, while known to few practitioners, are central to the consciousness of all UK academics: the “research assessment exercise”, whereby all university departments are regularly marked out of 10 for their “research” output, an exercise on which depend esteem and advancement and money. A person who takes the route of professional qualification will come on the job market at about the same time as the person finishing the PhD, but the latter is far more likely than the former to have “RAE-able” material lined up.

Law-lite?

As a result, the law schools have changed their character radically. In some ways it has been an improvement. But there have also been losses. The Scottish law school has moved further away from the continental tradition and also further away from the Scottish legal community. Scots law itself may perhaps now be at risk in at least some law schools. It is commonly argued that since many law students do not become lawyers, the syllabus should be “law-lite”.  But who would argue for physics-lite, because many physics students do not become physicists? Underlying this argument is the presupposition that law itself is not worth studying, that it has no place in a university, and that anywhere it is studied is a “mere trade school”. This attitude is not unique to Scotland: the same is true in the USA, where in many law schools there is a growing disdain for legal scholarship and for legal practice. (See, e.g. Edwards (1992) 91 Michigan L Rev 34, and Lilly (1995) 81 Virginia L Rev 1421.)

Theory and practice: the false dichotomy

Legal philosophy, legal history, legal sociology, law-and-economics and so on are valuable, both in their own right and as casting light on law itself: so I passionately believe. But what needs to be urged in the modern academy is that law itself can be studied and taught, that Rechtswissenschaft is both the true path to the profession and in itself a true academic discipline, that it could not be the former were it not also the latter, that the women and men who enrol in our universities to study “law” should study (mainly) law, that a degree which says “law degree” on the label should have (mainly) law inside the box, that the amount of law in the box should not be set by the minimalist criteria which even the Law Society of Scotland seems to think sufficient, that “skills” are no substitute for legal science, and that whilst Scottish universities should have a vocation to study and teach many things, the law of Scotland ought to be one of them, a system of law which, if not studied here, will be studied nowhere. Perhaps these propositions will seem so self-evident as not to be worth the trouble of asserting: I only wish that that were true.

This article does not advocate practice as against theory. The dichotomy is false. Practice without theory is blind; theory without practice is empty. Nor does it advocate rote learning of “rules” and “authorities”. The remedy for bad law teaching and bad legal scholarship, so common in the past – and still to be found – is not to give up, but to do them better. Nor – let me repeat – does this article advocate any narrow doctrinalism, nor any little-Scotlandism: the opening up of our law schools both as to persons and as to perspectives has been invaluable: were we to go back in a time machine we would find the old atmosphere intolerably narrow. In conclusion, I will only suggest that if the idea, so widespread south of the border, comes to prevail here, the idea that law is a subject that is neither academically valid nor practically useful, then our “law” schools will have ceased to be worthy of their name.

A DEBATE to RUN AND RUN

Reactions to Professor Gretton’s remarks from Scotland’s other law schools show just how difficult it is to achieve a consensus on the way forward for law teaching – or indeed of the nature of any problem, if one exists at all.

Essentially, Gretton’s views can be summarised as:

• teaching of Scots law is under threat because teaching staff are no longer required to have a Scottish legal qualification or indeed a Scots law degree – and it has become very difficult to recruit qualified lawyers for a variety of reasons;
• as a result, law is coming to be seen as a practical rather than a learned or academic subject (i.e. we are in danger of adopting the English attitude to legal education) and students are not acquiring a proper grasp of the structure, principles or terminology of Scots law.

“Broadly speaking, I think I would accept both points but I do not think they are necessarily connected and they do need to be teased out”, commented Dundee’s Professor Fiona Raitt, a practising solicitor herself for 13 years. For Raitt, in fact, the advent of the Law Society of Scotland’s accreditation procedures imposes a greater rather than lesser expectation of staff being professionally qualified. “They expect all prescribed Scots law subjects to be taught by someone with a Scottish legal qualification, or at least to have a supervisory overview from such a person.”

Ken Swinton at Abertay also accepts an element of truth in each point but disputes the perceived link. “If someone is teaching European law, for example, which is a Law Society of Scotland required subject, why should they need to have a Scots law degree?” he asks. “Staff ought to be deployed where they are competent and credible as teachers. That is a fundamental quality issue and institutions ought to be addressing that.”

Relevant qualifications

In fact, of the current teaching staff around the law schools there appears to be a very respectable percentage with a professional qualification, albeit not always a Scottish one. In Dundee for example (which teaches English as well as Scots law) the ratio is over 50% (40% Scottish). At Stirling, newly accredited to offer the LLB, and Glasgow Caledonian, the figures are similar; Abertay reports a 75% professional qualification. Glasgow University reports 30% of lecturing staff with a Scots law qualification, but 78% with a Scots law degree. None has more than a handful of staff without any legal qualification or law degree.

Strathclyde’s Director of Teaching, Professor Jenny Hamilton indeed asserts: “A focus on the Scots/non-Scots law qualifications of lecturing staff is, we believe, quite irrelevant in the context of an academic, rather than practice-based, degree.”

Academic or vocational?

Most universities certainly continue to assert the status of the LLB as primarily an academic degree, but place varying levels of emphasis on how this feeds through into training for practice. In contrast to George Gretton, Professor David O’Donnell of the Robert Gordon University, Aberdeen believes that the choice has to be faced – indeed it is the essential question that needs to be addressed at the outset.

“Is this an academic degree or is it intended to be more vocational? Given that an accreditation is required from the Law Society of Scotland there must at least be some element of vocation involved. This immediately raises the conflict between those in the universities who take the view that the degree should be academic, as not all students wish to practise law, and those who see the LLB as a necessary introduction to the structure, principles and practice of Scots law, allowing students who wish to do so to continue on to the Diploma and traineeship. Unfortunately this dispute has never been settled because of the disparate interests of universities and the profession.”

O’Donnell’s remarks reveal a lack of consensus even in what constitutes an “academic” degree: what he sees as the vocational element, others would categorise as primarily academic content. This may colour his comment: “We only have to look at how medicine (a vocational degree) is now taught and to ask, would we be happy with a more academic approach here?”

Most other respondents continue to insist that the LLB is academic – and echo Gretton to the extent of asserting that academic study develops the skills required in legal practice, while disputing his analysis of current standards and trends. Jenny Hamilton is typical:

“We at Strathclyde agree strongly with the view that the primary purpose of the Scots LLB degree is academic… what lawyers require is the ability to think imaginatively and analytically, to present well reasoned argument and to understand the broader social, ethical, political and economic contexts in which Scots law now falls to be developed.”

Stirling’s Professor Fraser Davidson is hostile to Gretton’s thesis that this is weakening: “We teach law as an academic discipline which has obvious practical significance. That has been true of every law school in which I have worked, and I have seen no sign of the suggested trends.”

Professor Tom Mullen also insists: “At the University of Glasgow, and I am sure the same is true elsewhere, there has been no dilution of the academic content or intellectual rigour of the LLB.”

Influences at work

Nevertheless change is afoot. Ken Swinton highlights a subtle shift required by the Quality Assurance Agency, from setting aims and objectives to “learning outcomes for modules”. “You no longer state what you are trying to achieve in your teaching but what competences the students will have as a result of the teaching. The idea is, that is measurable and it is what employers want. An aim might be that students should appreciate how Roman law has influenced the development of the law of servitudes in Scotland. An outcome would express this as: students should be able to state the characteristics of a valid enforceable servitude and the methods by which it might be created. The Law Society of Scotland has now discovered competences and outcomes, and the present review of the Diploma is proceeding on the basis of stating these. The syllabus review of the LLB is about to get underway and may result in this approach as well.”

True it is too that some do see LLB graduates as ill prepared for what follows. David O’Donnell: “Given my experiences with the Diploma with regard to students’ knowledge of Scots law and practice on admission, I am firmly of the view that the current degree fails adequately to prepare students who wish to practise. It has seemed to me for some time that certain of the professional subjects are taught in an academic vacuum without any grounding in day-to-day legal practice.”

Alistair Bonnington, solicitor and honorary professor in the Glasgow University Law School, tends to agree with Gretton: “I regularly hear ill-informed senior practitioners suggest that the Diploma course should be abolished, as it achieves nothing. If only they knew! If the students were allowed out into law firms without the exposure to legal practitioners in the Diploma, they would hardly know any Scots l at all.”

Attracting the right people

Whether or not there is a connection with standards, there is quite a widespread feeling that it is becoming more difficult to attract practising lawyers into the academic life. (Exceptions are Stirling and Glasgow Caledonian, whose Tom McDonnell reports that after a “very good response” to a recent advertisement for two lecturing posts, the successful candidates were both qualified Scottish solicitors with previous university teaching experience.)

“It is increasingly difficult to recruit people with teaching experience or potential”, admits Chris Ashton, acting head of the law school at Edinburgh’s Napier University. Like Gretton, she points the finger at the research assessment exercise (RAE) as a principal cause. “Universities are businesses now and need each discipline to justify their existence by gaining external accolades such as a good RAE rating”, she explains, adding: “Whether this will put ‘Scots law’ at risk is another matter.”

For Ken Swinton, the problem is the academic life becoming less attractive compared with practice. “Most students will graduate with considerable debt by the time they have completed their LLB and DipLP. They will want to qualify as a solicitor to keep their options open and then find that the salaries in the universities are significantly lower than in practice and that the opportunities for promotion depend largely on stepping into dead men’s (and women’s) shoes. If you are a Scots lawyer the opportunities for mobility elsewhere are not that great. The ability to specialise in practice means that an able professional may feel much more engaged than was possible 30 years ago.”

Professor Colin Reid of Dundee also identifies “good Scots private lawyers” as the hardest to recruit: “only a very exceptional person wants to choose to follow this line in the academic world”. Though he recognises the traditional ties between profession and academia in Scotland as a strength, he does wonder where candidates for a Scots law chair will come from in a few years’ time.

Side effects of the RAE

He however sees a different danger from that identified by George Gretton. “This is that the law becomes less, rather than more practically oriented, so that we end up in the position which I have seen in England that the only people interested in land law are those interested in the jurisprudential nature of property rights, not in how the Law of Property Acts and land registration actually work.  Such moves are encouraged by the RAE that gives universities an incentive to look for the more ‘academic’ researchers coming ready-formed with publications and underplays the value of work that actually changes how people practise.” Ultimately, he admits, the result might be the Gretton prediction, with the professional law being taught as a simple technical skill.

It is well known that the RAE takes what some would describe as an English perspective in placing little value on books written for the practising profession. The consequences are predictable, as Alistair Bonnington points out. “As The Journal’s book review editor I notice that very few Scottish law books these days are written by academics. Almost all such books are written by practitioners. Without the efforts of our practising profession, including judges and sheriffs, we would have very little usable legal literature in Scotland. Our academics do not deliver the goods any more.”

With such a spread of opinions the task of regulating the future of the LLB in the coming years is an unenviable one. David O’Donnell indeed suggests it may become necessary to offer two separate degrees: “one academic and one much more practice based, exempting its students from the Law Society exams, and leading to admission to the Diploma etc”. It is unlikely that the others quoted in this article would agree with him; at the same time, those who want to see a more rigorous academic study as the proper foundation for the professional qualification will have to present an equally rigorous case.

FROM COUNCIL CHAMBER TO LECTURE THEATRE

David Sillars, a local government solicitor for over 20 years, latterly as Head of Legal Services with Renfrewshire Council, is about to take up a lectureship at Glasgow Caledonian University. With a wide diversity of work in his CV, he explains his reasons for making this career switch:

“I have taught public administration on the postgraduate Diploma at the Glasgow Graduate School of Law for some time, where I have tried to recycle some of my experience. In my view context is very important, and in the public sector, the practitioner not only requires to be expert in their subject matter, but to bring a ‘monitoring’ awareness to ensure that the law and appropriate ethical standards are met. It is important that these elements are insinuated into legal teaching.

“I am at a stage where I think my practical experience might be useful to law students, and so the opportunity Glasgow Caledonian University have provided to extend my involvement with the teaching of law is exciting, not least because it is a new, energetic law school, providing an LLB course on a modern campus with its state of the art ‘Saltire Learning Centre’. My new colleagues have ‘hands on’ experience drawn from both the public and private sectors, and the undergraduate conveyancing module is taught exclusively by current practitioners.”

THE SOCIETY AND THE LLB

The Law Society of Scotland accredits providers of the exempting LLB in Scotland. Currently five providers are recognised under the original arrangements and five have been formally accredited by the Society. Over the next two years all 10 will come under a single system, the guidelines for which are available on the Society’s website. However, many issues affect the direction of legal education in Scotland and these are not always known, or all known, by those involved in different aspects of our route to qualification and the profession more generally.

In all areas of education (including the Society’s exams, Diploma in Legal Practice, the traineeship and the Professional Competence Course) the Society balances a range of competing interests. The profession (large and small firms, corporate and private client, private practice and in-house, rural and urban); the providers of education; educational experts who value varying and contrasting approaches; students and recent graduates with their very different angle (student debt, competing work commitments, how well the degree and Diploma prepared them); those involved in school level education and related qualifications (for paralegals, non-LLB law degrees, colleges providing HNC/HNDs in law): all have concerns and contributions; as do our colleagues at the Faculty of Advocates and those working in the judiciary.

It is not uncommon to attend two meetings in a week of highly respected and committed individuals who articulate completely opposing views – the issue of Scots law qualifications in teaching staff being a notable example where views significantly differ.

Furthermore, the regulatory field is becoming more complex. Decisions in relation to legal training are often arrived at in consultation with the Joint Standing Committee on Legal Education (chaired by Lord Eassie and including university representatives). A recent example would be the new standards in relation to LLB accreditation which all law schools approved. Both the Scottish Executive and the Office of Fair Trading have recently commented on issues in legal education and several letters a year are received from MSPs and ministers. Finally, we meet regularly with our colleagues from the Law Societies of England and Wales, Northern Ireland and Ireland to discuss their approaches and experiences, and take part in a “regulatory forum” of other professional regulators in Scotland.

EU legislation and decisions affect our domestic system. For example the much cited Morgenbesser case (C-313/01, 13 November 2003) extended the requirement on professional bodies to recognise professional qualifications, to “part-routes” to qualification. In practice this means that it is no longer acceptable to force someone who had not completed professional training in their home jurisdiction before moving to a new country, to go back to the beginning of the new system with no dispensation for their previous learning. This forces professional bodies to clarify very exact requirements in relation to qualification and have mechanisms for measuring an individual’s attainment, at least in the case of those who have completed some legal training in another EC country. This is also required for the Society to be able to comply with domestic legislation, for example the statutory code of the Disability Rights Commission governing our role as a “qualifications body”. Such factors almost necessitate a model of education based on clear outcomes, robustly assessed – often a long way from our current fairly general curricula and essay-based assessments.

The Bologna Declaration of the European Ministers of Education (19 June 1999), and to some extent its forerunner the Sorbonne Declaration (25 May 1998), are also having an impact, addressing issues such as the comparability of university qualifications across the European Union; and in Scotland we have not been immune to the repercussions of the Clementi review in England and Wales and how this may change our thinking in relation to legal education.

The Education and Training team often have a hard job trying to gain consensus views, balance competing interests, ensure our systems are compliant with a range of legislation and requirements and having to take hard decisions about policy direction. Projects, which will soon go out to consultation with the profession and key providers, are underway to ensure we have outcomes and assessment methods that will meet the pressures relating to admission to professions. The Society will continue to fulfil its role as a focal point for debate and exchange of views on the future of all aspects of our profession, and will set regulatory policy in partnership with those who are committed to law in Scotland. We won’t please everyone all of the time and see open debate of issues as invaluable, but the high esteem Scottish legal education is held in internationally is a testament to the fact that together all the parties involved are achieving and delivering a system we should be rightly proud of.

Neil Alan Stevenson LLB, MSc is Deputy Director (Education and Training) of the Law Society of Scotland. Feedback is welcome and the Society is actively recruiting individuals (from students, to partners, to professors) to scrutinise early drafts of its project outcomes and provide their views – neilstevenson@lawscot.org.uk