Holding a mirror up to nature

Rather belatedly I have caught up with a discussion over at Richard Moorhead’s Lawyer watch blog, in which Richard looks at the College of Law’s new two year LLB and questions the extent to which it is likely to be as different from other LLBs as it claims to be. A critical point in Richard’s argument is that

The real, intellectual difference between the College’s approach and the traditional law school’s approach is most likely between the College’s emphasis on teaching students in the practical utility of law. In the College this is likely to lead to solid practical teaching of solid practical legal skills in determinedly practical contexts. A bit of this is a good thing.  In fact, problem based learning is well established in some undergraduate curricula already.  But to concentrate on this to the exlcusion of everything else?  That gives me concerns.  Students are likely to be well trained in a mechanistic way but will they be inspired?  Will they understand the broader picture? Will they develop critical thinking skills?  The key thing that an excellent University education provides beyond the basics is those moments of inspiration, where the student’s world view may be genuinely transformed.

This post generated a number of interesting responses, including a thoughtful post from the College’s Scott Slorach. Amongst a range of points, Scott takes on Richard’s concern that the College will not address the ‘broader picture’, as follows:  

The broader picture is the understanding of the practical, contemporary contexts in which legal principles are applied in order to facilitate transactions, assert rights, allocate risk, seek remedies, govern businesses, define relationships, and so on. Providing this broader picture of the interests of individuals and businesses, and how practising lawyers use the law to maintain, develop and protect these interests is paramount to a deep understanding. I agree with you entirely that an excellent education should be one which provides the “spark [which] is necessary for life-long learning, commitment to professional ideals and to produce the truly exceptional individuals who can cope with transformative change. It is also necessary for the quality of university as a life experience.” I believe that providing students with the aforementioned broader picture will create an environment where the sparks will be in the form of “Now I see why…”, “So that’s how you can…”, etc. That is, understanding not only what the law is, and why the law is as it is, but, most importantly, how it can be used practically for the benefit of individuals and businesses. It is this latter relevance which can provide understanding and continued motivation to learn from the start.

Now we could, of course, just mutter that there is room for many approaches and respect the virtues of a thousand flowers blooming and leave it at that, but I can’t help but wonder if there isn’t something fundamentally a bit troubling about Scott’s response.

I agree absolutely that degree level education needs to address the various dimensions of “what”, “how” and “why”, but I am concerned that what Scott offers is (i) not necessarily a “broader picture” – though it may be different from what many law schools currently offer – and (ii) both (as that paragraph demonstrates) an elision of the how and the why, and a prioritisation of a particular how that may be ethically troubling. If we present law in a primarily vocational setting that emphasises the ‘use of law for the benefit of individuals and businesses’ that seems to fit rather well with the utilitarian ethos of the times. It is pragmatic in a way that may well attract students focused on their future job prospects, though they may not actually have a great grasp of what will best equip them for the marketplace, and it may be moot whether any law degree presently fits that bill (which is, of course, one of the questions LETR is looking at). But is it what our students, and society, actually need a higher legal education to be?

At the risk of over-simplifying the issues, I worry that Scott risks prioritising a hired gun model of lawyering, by narrowing students’ understanding of the social context in which law operates to the horizon of the prospective client. Doesn’t a deeper and broader understanding of context require a grasp of the wider social functions and moral ambitions of law, and doesn’t the examination of that require some commitment among teachers of law to understanding and researching ‘law in action’ (a wider concept than law in practice?) and, dare I say it, a philosophy of both law and education, not just training? Law degrees probably should engage with the practice of law more, and I absolutely agree that understanding ‘why’ in a practical context can be a really useful trigger. But its not the only one. A wider understanding of the social context enables us to shine a critical light on, not just hold a mirror up to nature. And isn’t that the way it should be?   



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