The Gazette 1979

GAZETTE

SEPTEMBER 1979

education, and, in particular, to define its relationship to

legal practice course training. I readily concede the

difficulty — and the genuine difficulty — of that task. To

begin with there are the central questions of "core"

subjects and the range of elective subjects, about which

there is still considerable difference of opinion amongst

academic lawyers generally, and often amongst the

members of a particular Faculty. And then Law Schools

also have to teach law to students who do not propose to

practice at all, but who seek legal education for other

purposes. That itself presents a problem. The treatment of

subjects by law teachers is also a question on which there

are still widely differing views and attitudes. Many teach

in the way described by Professor Irwin Rutter in his

article "A Jurisprudence of Lawyers Operations", where

he wrote: " . . . law schools have been concerned

substantially with the teaching of

doctrine,

with only

incidental attention to professional legal operations. Legal

doctrine embodying die

rules

of law, is one essential

ingredient of lawyers' operations, but only an ingredient,

greatly sterilised by its divorcement from professional

operations. That sterilisation", he goes on to comment,

"often approaches meaninglessness when the vehicle of

doctrine is limited to appellate opinion".

The same point

has been made by other academic writers. Professor

Twining referred to it in his article "Pericles and the

Plumber" where he said: "students . . . . are served

appellate judgments as their staple diet;" and "curricula

rarely, if ever, descend to even the level of courts of first

instance to concern themselves with such matters as thr

reasoning processes involved in drawing inferences from

evidence or the intellectual processes of sentencing, to

take but two examples".

® And some Law School teaching

took it must be said, does not even descent to the level of

doctrines or rules, but seems more akin to a course in

or the philosophy of law.

The general aims of University education have been

expressed in many ways. Thus Lord Scarman once said

that "The job of the University is to fire and discipline the

mind of the young"

and Lord Radcliffe has said that

Law School education should be "something not less than

a quickening awareness, continuously related to the

Society (the student) lives in and by its own force

associating him with changes or developments".

Those

aims should not be denied, nor should Law School

education be put into a straight jacket; and due

recognition must be accorded to the legitimate exercise of

academic freedom. But the final objective of Law School

education must also be kept in mind, as must be the

demands of Legal practice course training. I believe it is

possible for a just balance to be achieved in all this, that

the role of Law School education can be attuned to that of

legal practice course training, and that some professional

realism can be injected into Law School teaching, without

in any way denying or lowering its proper standards. And

I am not alone in thinking that. No less an authority than

Karl Llewellyn saw no difficulty in wedding the liberal

and professional in Law School teaching.

Problems of Integration

Legal Practice Courses inherit the products of our Law

Schools, and the problems involved in having to do so can

be considerable if Law School education is to any marked

extent out of harmony with the objectives of legal practice

course training. Let me illustrate by an example. One of

the problems associated with legal practice course

training is how much substantive law should be taught as

part of the course. Now it seems to me that the teaching

of substantive law is wholly at variance with the proper

objectives of legal practice course training. Nevertheless it

does seem to be thought that some substantive law must

be taught. Why is that so? I believe the problem is one

that has been forced on Legal Practice Courses because

of the way in which many Law Schools see their own role.

Many see it as being to teach more and more law, and

that is evidenced by the number of subjects that are

required for the degree and the number of optional

subjects offered. The result of this is to create in the minds

of students the thought that unless they have been taught

a particular area of law they cannot be expected to know

it. And many of those who teach in legal practice courses

have the same thought, namely that if students are to

understand a particular aspect of the law they must be

taught it. And this attitude in turn seems to breed in

students a resistance to the thought that they ought to be

able to discover and unfold for themselves new areas of

law by the simple application of the learning and the

intellectual processes that they have acquired in Law

Schools. For my part, I would prefer to see Law Schools

teaching less law, not more law, but teaching it in greater

depth, with greater professional content and with greater

emphasis on the intellectual processes that are common to

all understanding of the law. Given that kind of

education, a student should, theoretically at least, be

capable of exploring and unfolding new areas of law for

himself. Perhaps some help and guidance will be

necessary, but this should be minimal.

The problem here then is to define the objectives of

Law School training and to integratethem with legal

practice course training. It is a part, of integrating the

whole legal educational process. It is not good enough

any more to say, in general terms, that the Law School

will be responsible for one part of legal education, the

Legal Practice Course for another part, and the

profession at large — which really means no-one at all —

for the remainder.That way, I believe, lies fragmentation

and en eventual breakdown of the whole process. There is

obviously a need here for consultation and co-operation

between all those involved in the process, between the

Law Schools, the Legal Practice Courses, the Law

Society, the Bar too (for I do not think they can afford to

remain aloof from all this), and, Finally, perhaps, students

— I at least have always found their contributions of

discussions of this kind helpful and usually sound.

Perhaps there is a need for a special body charged with

the specific task of co-ordinating the various component

parts of legal education, and of being ultimately

responsible for its effectiveness. Its task would not be an

easy one, but it is a job that 1 think must be done, if the

course of legal education in the future is not to take an

altogether different direction.

Now I want to make it clear that nothing I have said

here is intended as a criticism of any Law School in

particular, and certainly not of any Law School here in

Ireland. I am quite unfit to do that, and I have no wish to

do so anyway. I offer them only as general comments for

which ample support is to be found in the legal literature,

and which is supported, to a greater or lesser extent, but

my own observation of some Law Schools with which I

135