Legal science or law-lite? A response

We should welcome the opportunity provided by Professor Gretton in his recent article ("Legal science or law-lite? February 2006, page 14: http://www.journalonline.co.uk/article/1002704.aspx) to debate the future of legal education in Scotland and its relation to the legal system. There is much that is valuable about his article, but I must begin by expressing concern at two features of his argument which are unhelpful and possibly misleading.

First, the article begins and ends by characterising law teaching in England as promoting the idea that law as a subject is “neither academically valid nor practically useful”. This is inaccurate, as a brief examination of any of the recent statements of the Law Society and General Council of the Bar show (see e.g. http://www.legaleducation.org.uk/Degrees/law.php). More importantly, this kind of negative comparison with England is also characteristic of the little-Scotlandism that has occasionally marked the Scottish legal tradition. The argument, if it is worth making, should stand or fall on the merits of the discussion of Scottish legal education, and is hardly dignified by loose misrepresentations about the state of English legal education.

Secondly, he refers throughout the article to the "law-lite" degree – clearly implying (if we continue the soft drink metaphor) that what is being taught is somehow not "the real thing". However, it is not clear to me what this "law-lite" curriculum is or where, if anywhere, it is being taught. While we might debate the way that law should be taught – and this, I presume, is the kind of debate that Professor Gretton is trying to stimulate – I know of no one who is advocating that “law is not worth studying” and have never come across this “disdain for legal scholarship”. This is scaremongering and shows a worrying lack of respect for intellectual positions or traditions that differ from his own. Rather than stimulating debate, the use of such terms is likely to close it down.

If, however, we look behind these comparisons there are two central claims that are worthy of further examination: that the law schools are losing their links with the local community in a way that is damaging to the study and teaching of law; and that the study of Scots law is itself at risk. I shall consider each of these claims in turn.

I. The changing legal academy

Professor Gretton presents a useful summary of the pressures that are faced by the legal academy, though by focusing only on factors which might affect the appointment of those with a qualification in Scots law he inevitably presents a somewhat distorted picture. He identifies three main changes that have made the appointment of those with a qualification in Scots law less likely: the erosion of academic salaries (at least in relation to the salaries in the legal profession), globalisation, and the Research Assessment Exercise (RAE). I want to say a bit more about the latter two – and to mention a further change which, while not strictly relevant to the question of employment of Scots, has had a significant impact on the way that law is taught in the Scottish universities.

Globalisation has certainly affected the market for academic law jobs in the UK, if by this we mean simply that applicants tend to come from a much wider range of jurisdictions than would have been the case 20 (or even 15 or 10) years ago. It is also worth noting in passing that job applicants are more diverse in terms of gender and ethnic background, which has also contributed to the “opening up” of the law school referred to by Professor Gretton.

However, what this primarily reflects is the globalisation of law. It is no longer possible to describe something called Scots law without including European and other forms of international law. A large part of the legal curriculum, as a consequence, is now given over to the teaching of these areas and the profession would presumably expect graduates to have a good knowledge of the relevant law. Yet this can hardly mean, as Gretton suggests, that the elite universities are being de-coupled from the communities in which they were once embedded, as the legal community for which these undergraduates are being prepared is now much broader and more international, and academics are preparing these students for entry into this broader community.

As a result of academic exchange schemes a large number of Scottish students now spend a part of their degree studying at a foreign university, and the Scottish universities welcome significant numbers of foreign students. Scottish law graduates pursue their legal careers in London, Brussels, New York or with a variety of international organisations – as well as in the local profession. Legal academics are also active in redefining these communities, and even those with an interest only in Scots law narrowly understood have been beneficiaries of this process of globalisation.

Since the ending of apartheid in South Africa, for instance (and as well as, in some unfortunate cases, during), Scots private lawyers have forged new international links and the study of the intellectual foundation of Roman-Dutch law, and of mixed jurisdictions, has flourished. The European civil code project has brought Scots lawyers into regular and rewarding contact with their counterparts from a number of different European jurisdictions. Whether or not this is seen as an elite phenomenon it makes it hard to draw any generalisations about our community. Globalisation is not a one way process of opening up places in our universities to foreigners, but reflects more fundamental changes in the nature of contemporary legal regulation.

Equally the RAE has had an impact on the legal academy. As Professor Gretton points out, it has had the effect of professionalising the career of the legal academic. Universities now look to appoint those who have the sort of publications that are rated highly in RAE terms. Staff are encouraged not to publish short case notes or articles in professional journals if they do not have other "higher prestige" publications. And the writing of textbook or practitioner manuals is discouraged if it is deemed not to have a high enough "research content". It is, as a consequence, increasingly hard (though not impossible) for a person who has pursued a career in legal practice to change to an academic career, as they are less likely to have publications of this type.

While this is unfortunate for those members of the profession that fancy trying a bit of law teaching, it is hard to avoid the conclusion that it has had a positive impact on the legal academy. The RAE has encouraged the publication of lengthier, more scholarly, articles and books about law, and by focusing on this in making appointments, universities seek to ensure that those who are teaching law have a proper training in research skills and in the academic disciplines that enhance their understanding of law. It does not, it should be noted, discourage writing about Scots law. Indeed, it is arguable that there have been more, and higher quality, publications in the area of Scots law in the last 20 than in the previous 100 years – including, of course, Professor Gretton’s own work. However much legal academics may dislike the cycle of six-yearly research reviews, we should hesitate before jumping to negative conclusions about their impact on Scots law.

I want now to mention briefly one further important development. While Professor Gretton refers disparagingly to the replacement of legal science by "skills" training, it is worth noting, along with some of the commentators on his article, that the emphasis on skills is part of a broader movement that seeks to guarantee quality in higher education driven by the Scottish Higher Education Funding Council and the requirements of quality assurance. Many of these requirements are tiresome and unpopular amongst legal academics, but they do remind us of the important fact that higher education is publicly funded and should meet certain basic standards of accountability in the spending of public money.

However, it is probably also the case the current emphasis on skills has had little impact on the content of the LLB. This has never sought to teach the student "all the law" but rather to provide the skills that would allow them to understand and apply new areas of law – this indeed is the type of justification (learning the underlying grammar of law) often advanced for studying Roman law as an element of Rechtswissenschaft or legal science. The current emphasis on "transferable" skills in the packaging of courses may be novel, but this should not blind us to the underlying continuities in legal education or to the fact that such skills may be desirable to the profession.

These then are the developments that are changing the traditional relationship between the law schools and the legal profession. But is important to note here that it is not only the universities that are changing, for the pressures of globalisation are also altering the legal profession and what it might expect of legal education. Does this mean that Scots law is at risk?

II. Is Scots law at risk?

Professor Gretton suggests that Scots law is at risk because legal practitioners are less involved in the teaching of Scots law, and because of a lack of respect for law itself or legal practice in the law schools. Yet it is not quite clear what he means when he talks about Scots law. The ideal appears to have been the point in the 18th century when the symbiosis between legal education and practice, and between Roman law and an emergent national legal system led to the production of the institutions of Scots law. However, like the institutes of Roman law on which they were modelled, these institutions were largely about private law. There was little or no Scots public law to speak of – there being no state in Scotland at the time – and many of the core areas of contemporary legal practice, such as family law or medical law had yet to emerge.

The picture at the beginning of the 21st century is very different. With the re-establishment of a Scottish Parliament and the passing of the Human Rights Act, Scots public law is a large and growing area. Fields of law, such as intellectual property or environmental law, have emerged that would have been unthinkable to the institutional writers. These are central to legal practice and are popular amongst students. They may draw on existing principles of Scots law, but cannot be reduced to them, being comprised in many cases of unlikely amalgams of private law, common law, administrative law, human rights law, European Union law and international treaties. They may not be Scottish in the sense that would have been understood by the institutional writers, but they are the law which applies within our jurisdiction, and which is taught in our law schools. Indeed a law degree containing only legal science as the institutional writers understood it would be of little interest or use to the legal profession because it is too narrow.

Even so, it may be going too far to say that the traditional areas of Scots law as covered by the institutional writers are at risk. They are a smaller part of the whole, and it should not be surprising that they occupy a proportionately lesser place in the curriculum. They are, notwithstanding this, unquestionably of fundamental importance to the development of an understanding of law, which is why study of the principles of private law occupies a foundational place in the LLB curriculum.

This brings us then to the second claim, that the current teaching of law is unacademic. It is obviously important that it should be recognised that the university study of law is academic, rather than vocational, and I would support this. It is easy to see that the training of a lawyer falls into two parts: the LLB is primarily (not exclusively) academic; and the diploma and traineeship are primarily vocational. But this leaves the question of how law should be studied as an academic subject. For Professor Gretton this is to place law in the tradition of Rechtswissenschaft or legal science: the “true academic discipline” of law. This he argues should mean that a law degree should involve the study of law and that a Scots law degree should comprise the study of mainly Scots law.

It is hard to see who would disagree with these propositions as they have been formulated. However, it also seems clear that many would disagree over what they mean in practice. Despite his claim to value legal philosophy, history, sociology and so on, it seems that Professor Gretton would see these as interlopers in the true academic discipline of law. I would argue strongly that this is too narrow, and that there are many ways of taking law as an object of study, no one of which should exclude the others. I would not defend the position that students should not know the law, but there are many different ways of knowing the law, and in the situation where the law is changing so fast, legal education can only be strengthened by a recognition of this point.

III. Challenges?

It is obviously important that we think about and address the challenge of our current situation, and so I want to conclude by making a couple of suggestions about how we might address problems in the area of recruitment and publishing.

The problem of recruitment in my view is not that non-Scots are being appointed in Scottish law schools. I cannot see this as a problem. It does not matter who teaches law in Scotland provided that they do it well, and in my view a weak Scottish-trained academic is not to be preferred to a strong academic from elsewhere. Any other attitude is likely only to weaken the profession and damage Scots law in the long-term.

It is, however, the case that the Scottish universities are encountering difficulties in attracting well-qualified people to teach private law subjects, especially in commercial law. The solution here is not necessarily to relax the job requirements (or raise the salary) to admit practitioners, as that would undermine the professional ethos of the law schools. It should be a matter of concern to both the universities and the profession, and both should bear some responsibility in trying to find a solution. The Scots legal profession has benefited historically from the state subsidisation of legal training with grants for the LLB, and latterly the Diploma. If the profession really values the study and teaching of Scots private law in the university it might consider returning financial support in the form of LLM or PhD scholarships for those who could become the next generation of Scots law teachers in the universities. The profession and the academy should work together, each recognising the needs of the other, to produce a mutually agreeable solution.

The problem in the area of publishing is slightly different. As Professor Gretton points out, the traditional forms of legal publication – the practitioner text, the case commentary – are no longer being produced to the same extent by legal academics, as they are encouraged to produce longer, more scholarly articles. At the same time, however, the world of legal publishing is changing. The traditional Scottish law publishers have been taken over by larger multinational companies – and in the case of Butterworths have withdrawn from the Scottish market altogether. There are some new, smaller, law publishers, but it remains to be seen how they will establish themselves in the field and what kind of publications they will support.

The market for textbooks in Scots law subjects has grown, with the establishment of new courses, as has the market for practitioner texts, but there is a greater financial risk in publishing scholarly work (whether in book or article form) which might be too complex for use as a teaching text, and too theoretical to be of interest to practitioners – though such work is arguably vital to the health of any legal system. However, a small jurisdiction such as Scotland cannot support a large legal publishing industry, and the problems will only be exacerbated if the profession and the universities do not communicate with each other. In the past this was done through the Scottish Universities Law Institute, which has commissioned scholarly works on Scots law and supported the Juridical Review. What was striking about the crisis in legal publication produced by the withdrawal of Butterworths was the absence of a collective response. The challenge is to encourage new modes of publication, and perhaps new forms of literature that meet the needs both of the profession and of the university.

The problem in the end is not that of choosing between legal science and law-lite. It is instead to recognise that if Scots law is at risk, this is less because of the inadequacies of law teaching than because of the processes of globalisation and the opening up of new areas of legal practice that have little to do with the traditional categories of Scots law or legal science. We cannot reverse these processes, and to seek to insulate ourselves against them by reversion to a traditional conception of legal science would make the law less, not more, relevant. The important question for both practitioners and legal academics today is that of how we can respond to these challenges.