For less specialist legal education

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The Solicitors Regulation Authority (SRA), the United Kingdom’s statutory regulator for one branch of the legal profession, has done away with the requirement for a university degree in law, which news has caused me to wonder about Canadian legal education. As a law student paying $9 000 per term (for 6 terms, and my tuition is relatively cheap) for the privilege to access the qualifying exams that let me into the legal profession (after articling), I find the present requirement for a university degree in law unnecessary. A law degree does not prepare aspiring lawyers’ critical abilities for practise. Law degrees today discipline students to understand rules in ways that the profession accepts. In other words, Canadian legal education is premised on teaching a curriculum of hard rules. Lawyers spend their time fitting individual cases into general rules. They must possess a generalist’s humanist education reminiscent, but not identical to a nineteenth-century liberal arts curriculum.

The difference between studying law and practise is, as Harry Arthurs points up, interactions between complex, human systems animated by personal interests, group claims, and the historical baggage that comes with each. Learning law for law’s sake indoctrinates the pupil. What’s needed in legal education is regard for the emotional complexity inherent in legal decisions.

Awareness of such complexity in the twenty-first century flows from a revised humanism, one that goes beyond the western canon to appreciate a wide swath of global cultures. The staid nineteenth-century humanist curriculum of classics, history, philosophy, and literature no longer fits the bill; specialization in a single field, however, ignores these more general concerns. The midpoint between these poles values law as a historical force, understands people’s intellectual and emotional preoccupations, and applies law—no matter how specific the case—with regard for the parties.

I am describing a difference between law and equity (one that I relish). Law is used to ferret out a person’s rights and responsibilities. Equity (in abstract form) resolves disputes with regard for what is conscionable. Law enforces rights; equity appreciates the human context of each problem.

Legal education largely eschews this latter form because lawyers, at least in our time, teach rights over equity (indeed, one maxim of equity is that it follows the law). Teaching in this vein ignores a humanist inheritance that was once common to lawyers. More importantly, and in line with the SRA’s reason for updating access to the English profession, equity better appreciates diversity.

Those who have engaged a lawyer’s services know why diversity is important: a councillor or an advocate must feel the patron’s reality to represent the patron’s context to others.

Preparation for the legal profession at one time acknowledged the necessity for broader learning. The Law Society of Upper Canada established a law school in 1881 that required articling students to study classics, literature, history, French, mathematics, and natural philosophy. (These subjects were common for matriculation into professional degrees and obtaining the B.A.) Lectures and examinations in substantive law were upper year subjects for admission to practise. The 1889 rules exempted university graduates holding degrees from faculties of arts from examinations; university graduates from Ontario had to demonstrate their knowledge in these subjects alongside advanced knowledge of law. Law schools in the province, whether run by the Society or by universities, were required to offer examinations in classics, literature, history, French, mathematics, and natural philosophy.

Ontario’s legal education, however, changed drastically as Canadian society industrialized. By 1919, the Law Society had all articling students in Toronto attending the school during the last three years of their articles. Students could attend law faculties instead of the law school. Those who didn’t, presumably, matriculated along lines similar to a humanist education. The 1919 curriculum lists pure law without reference to any humanist concerns.

The absence of any reference to humanities may simply be an omission, but legal education developed alongside higher education. Western universities after World War One grew alongside increased industrialization. The humanist liberal arts curriculum that dominated undergraduate education gave increasing ground to well-defined disciplines. Knowledge became siloed, and law schools were no exception.

This review has been a potted history that doesn’t do the subject justice. As higher education became siloed entering the twentieth century, legal education trundled on with little change. Another hundred years on, the plethora of undergraduate degrees now available from departments with very tight focuses means that law schools admit a wide range of student, yet the humanist underpinnings of the field remain somewhat assumed. Law school teaches its narrow curriculum, with allowances made for new legal fields.

Entrants from different intellectual silos encourage diversity in the profession; the profession’s failure to maintain the curriculum that it once assumed was common to all lawyers limits law’s ability to serve as a meaningful social institution.

This argument might be regressive: modernity relies on siloed knowledge, and lawyers tend to enjoy similar internal divisions. I think, however, that the humanist curriculum can, if updated, revitalize law schools for the information age (yes, I think that law school curricula pre-date the mid-twentieth century). Lawyers have access to more information than ever before, and they work in a profession that weaves narrative with rules. A lawyer funnelling information into a narrative must understand how her or his narrative ‘fits’ into social life.

I’ve set the bar mighty high, but lawyers know that my bar cannot be higher than the tired mythology of a profession that protects individual rights. This narrative issues from an English tendency to rebel within legal limits. Common law is the language that constrained the Crown’s despotism during the Glorious Revolution of 1688. The older language of pure equity looks beyond such constraints because it is rooted in judicial officers’ charity. Charity, the manifestation of conscience, is the ideal outcome of a humanist education. That’s why I want to see lawyers constantly returning to their impact on social life.

That return starts with education. Law schools teaching law to prepare students to write exams that test for legal knowledge doesn’t seem like a good value proposition. That exercise teaches a person about the narrow field of law, which, at its worst, is entirely self-referential: a caustic quality. Law school can instead teach in that humanist vein once required as a condition for study. There is an opening toward this view as schools embrace professors with doctoral training in other disciplines. The trend needs to go further. Law faculties can offer joint programs with faculties of arts and social science. Human sciences have to cross pollinate at the very earliest moment in legal life. In short, collect the ‘law and …’ movements in law faculties and synthesize a curriculum around these fields, and more besides. Teach a generalist program that lets students see the world on which they will practise. Law societies might do well to consider such an open stance toward education, with preparation for the bar and legal practise left to a student’s articles.