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Compulsory Subjects: Will the Seven Foundations ever Crumble?

Peter Birks

All Souls, Oxford

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Summary

In this comment the consequences for legal education of the joint announcement by the Law Society and the Council of Legal Education in January 1995 of the changes to the core requirements for qualifiying law degrees are examined.

Contents

Introduction
The Revision
The Resistance
The Ramifications
The Reject
The Result
Resource Accreditation
Full text of the new Joint Announcement

Introduction

In July last year, as is evidenced by the preface to Reviewing Legal Education (OUP, 1994), it was thought that we would, for the moment, hear no more of the professions' attempt to revise their list of compulsory subjects ahead of the completion of the LCACLEC's own report on the state and future of legal education in this country. Seven Foundations appeared to have been put on ice.

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The Revision

We dropped our guard too soon. The revision has been pushed through. Despite the danger to its own report, LCACLEC has been persuaded to bless it. The new rules will take effect for the coming Autumn's intake. The document is appended in full to this note. It was rumoured that there would be temporary dispensations available where a law school showed the professions that its circumstances made it essential to postpone the implementation for a further year. However, the document seems to say nothing of that. Oxford is one schools which will certainly be hit hard if there is no possibility of deferment. The innovations will require a quite far-reaching reform of the Oxford syllabus. Planning and personnel aside, there is already too little time left to satisfy the constitutional requirements as to the giving of notice. An intake of nearly three hundred all suddenly squeezed into European Law will bust the tutorial system. It must be the first time that a responsible body has told the university law schools to make a major change in just nine months' time.

The principal changes are now well known to everyone. To the six compulsory subjects is added a seventh, European Law. There are several lesser changes. For example, Contract and Tort become Obligations I and II, with Restitution included in I. Trusts has been enlarged to include Anton Piller Orders and Mareva Injunctions, also fiduciary obligations and unconscionability.

Modularization is a sub-theme. The assumption is that a degree will consist of eighteen modules - six each year. The requirements as to time have been cut to suit this new arrangement of the academic year. Each compulsory subject used to have to be taught for at least one fifteenth of a three-year course. That goes down to one eighteenth. Thus the compulsory subjects must occupy seven eighteenths of the course. However, there is a further gloss: law must be studied for nine eighteenths of the course. Either the compulsory subjects can be extended for a further two eighteenths or some other subject or subjects can be introduced. Beyond the nine eighteenths it does not matter what the candidate studies. It does not have to be law. It is to be presumed that most conversion courses will take advantage of the salami cuts sliced off the six old subjects so as to continue to squeeze all seven compulsory subjects into a single year.

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The Resistance

The SPTL resisted this reform through all the consultative meetings chaired by Mummery, J., chiefly because we wanted a clean start. We wanted the LCACLEC proposals to be given a clear run. The Law Society, which from the beginning had taken the initiative, found it difficult to believe that anyone would gainsay its plans and more than once took the view that the opposition should be discounted as coming from only one or two of the SPTL's officers. In fact the Council of the SPTL repeatedly voted to support the opposition. The main reason was that it seemed better to wait till LCACLEC reported before setting about reforms in earnest. Two waves of change would be wasteful and embittering.

The LCACLEC Report on the initial phase was and is expected this coming winter. There was no real urgency making it necessary to anticipate the Committee's proposals, and there was a real danger, if it were anticipated, that much needed radical reform would be further postponed. The professions knew that too, and that is why they pushed on. The implementation of Seven Foundations is a victory for both minimalism and for conservatism - that is, for those who think a smattering of legal education is all a lawyer needs and for those who dislike change of any kind.

The LCACLEC 1994 Consultation Paper - the Forty-Nine Questions which all law schools have recently answered - envisages a world without a list of compulsory subjects. It also recognizes, as the professions never have, that legal education is a vital interest of our nation and that law schools have a constitutional and law-making role. It holds out the prospect of a brighter future and whets the appetite for the final report. However, by allowing the professions to go ahead with Seven Foundations, the Committee has acquiesced in the continuation of the worst aspects of the present regime for the best part of a decade. When adjustments have been made by all the law schools to cope with the revised scheme (including in relation to European Law some retraining and some new recruitment), the system will not be in the mood to start thinking about further change. Given the normal requirements as to lead-in time, such good as the LCACLEC Report may do seems destined to be done in the next century. The professions and their allies no doubt predict that if they can prolong the delay the LCACLEC proposals will simply wither on the vine. They may be right. By then we will have lost the services in office of a great reforming Lord Chancellor.

It will be seen that the document carries a promise to review the situation in 1998, in the light of the LCACLEC proposals. That is the feeble price exacted for allowing the new proposals to be implemented now. It means very little. The professions have succeeded in occupying territory ahead of the final settlement. And they will have taken the edge off all appetite for reform.

Why did the Committee allow the wind to be taken out of its sails in this way? The question is unanswerable except by guesswork. The best guess would seem to be that those who cared about improving legal education were overpowered by the strength of the alliance between the professions and the managerial interest in the universities. The managerial interest in the universities, as opposed to the academic interest, is more than happy with a fixed and sufficient list of compulsory subjects. It keeps the cost of law schools and law libraries down; and the CPE conversion, which is tied to the compulsory list, opens the gates to floods of otherwise unemployable non-law graduates pouring in. The Treasury too is reluctant to invest in better legal education, and its voice comes through every wall. So the enemies of improvement are simply stronger than its supporters. It is an old story. For a hundred years and more the attempt to produce better lawyers has had to meet stubborn opposition.

The Treasury interest is easy to read, as also that of the university bosses to whom legal education is a product which sometimes makes best profits downmarket. They see no further than the end of their financial noses. In a competitive world, it is harder to read the interest of the professions in inadequate legal education. The glare of adverse publicity being very bright, they do not even gain much from keeping open the privileged conversion route which is open only to the rich. The price in social disesteem is very high. It seems that they have simply failed to notice the end of the era of the amateur or to understand the importance of good legal education even to their own pockets. They have been very badly led.

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The Ramifications

The fixed list of compulsory subjects is the most obvious symptom of an attitude to legal education which weakens English legal science. We will never have strong law schools in this country while the professions continue to disavow them, repeatedly declaring their preference for non-law graduates and boiling the subject down to this miserable list of now seven compulsory subjects. Indirectly, but in more than one way, the law library is likewise threatened with impoverishment to suit this travesty of jurisprudence.

The professions' systematic indifference to the well-being of all but seven subjects is not only myopic but bewildering. Medical schools have been hit by government policies, but the doctors could never have allowed medical science to be so impoverished and exploited. If lawyers insisted on strong law schools in the same way that doctors insist on strong medical schools, the English law school would be transformed. They could have done it, but they never saw any reason why they should. 'They' refers here to the professions as entities separate from the individuals which make them up. Many individuals and many firms have been generous and committed supporters of legal education. But the machines that exercise the power have done great damage.

The greatest absurdity which will now be continued for the best part of a decade is the combination of a list of compulsory subjects and the impossibility of substitution. It means in effect that nearly half the time available must be clogged up with courses pitched at the most superficial level. There is so much that has to be done in each compulsory module that superficiality is inevitable. Look for example at Public Law, and calculate the time available for administrative law or human rights. A law school which wants to give depth a priority over breadth is crippled by these prescriptions, for no reason at all beyond a bureaucratic refusal to contemplate a more flexible system. If, for example, someone has done company law, commercial law, family law and labour law, no case whatever can be made for worrying about the omission of some part of the so-called foundations.

The Law Society's official mentality does not appear to be able to admit that some other subjects might serve just as well as those on the compulsory list. This has serious consequences not only for individuals but also for the whole nature of the menu which can be offered in a law school. A candidate who has studied the seven subjects may go on to the vocational phase even if he or she has, for the rest, only Domestic Science or Film Studies. A candidate with twelve law subjects outside the compulsory list will not be deemed ready to proceed if she has missed parts of the seven sacred foundations.

With eighteen law modules to play with, there are dozens and dozens of combinations of subjects which, even if they omitted several fractions of the professions' seven, would indisputably prepare the aspiring lawyer just as well or better. If they are prepared to accept the seven subjects plus Domestic Science, what danger could possibly be risked by accepting any three-year law degree. A law degree, so called by the awarding university, would never have less than fourteen law modules. It is quite impossible to see why the professions, who in the document, pay lip service to the most liberal and catholic sentiments, cannot accept this simple rule: a law degree, so-called by the university which awards it, satisfies the academic phase. If they fear, once in a blue moon, a rogue university, it would be easy enough to set up machinery to make challenges on the ground of fraud or perversity.

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The Reject

Imagine candidate X, with a strong interest in international law: he might have done these twelve units: (1)General Principles of Public International Law, (2) The United Nations, (3) a dissertation entitled 'Legal Regime of the Continental Shelf', (4) The Law of Armed Conflict, (5) Jurisprudence, (6) Private International Law, (7) Carriage of Goods by Sea, (8) Legal History, (9) Sale of Goods, (10) The Jurisprudence of the European Court of Human Rights, (11) Monopolies and Competition, (12) Commercial Law. Suppose further that this candidate also has one non-law unit taken in the politics department, on international relations. That leaves five units out of eighteen. When we look at them in the light of the compulsory subjects, we find that he has done very little equity and trusts, nothing on Anton Piller and Mareva, nothing on unconscionability, no administrative law, and only a half-unit on contract. He does have tort, EU, constitutional law, criminal law, and one and a half units of land law.

This candidate cannot go on. He must stop to make up the deficiencies in his compulsory list. We might add that he was the best candidate in his year. It would make no difference. We might add that he went on to do an LL.M. at Harvard, taking his international interests further, especially in the field of international finance law and the law relating to the development of third world countries. It would still make no difference. He has not got enough of the only things the Law Society cares about. He must make up the gaps in the compulsory subjects. It is not so very difficult or so very expensive to do, but it is troublesome enough to keep everyone in line.

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The Result

We are condemned to live in this crazy world. If you have done your compulsory subjects, it does not matter how little other law you have done. If you are short on the compulsory subjects, it does not matter how much law you have done. The professions care passionately about seven subjects and could not care less about a hundred others. It is not just a mad world but a dangerous one. It is a world in which the diversity which the professions need is squeezed out of the system and very important subjects can be starved to extinction while all available energy is applied to the sustenance of the subjects which are strong and abundant.

If rules with these effects were not already in place, would it be possible for anyone to introduce them? Anyone who tried would be accused of rank stupidity. The answer may be given that even the much admired Ormrod Report contemplated core subjects common to all degrees. But Ormrod was moving towards a law graduate profession and contemplated the list as necessary within a law degree the rest of which would take the young lawyer off to many other areas of law. The serious madness consists in taking the notion of a core list and treating the subjects on it as both necessary and sufficient, without possibility of substitution. We have instanced the case of a law student who chose to load the international end of his law. In some impoverished schools he would not have been able to do so. International law is often not available.

That student merely stands for the possibility of many different emphases and specialisation's within the law and the pressing national need for them all to be pursued with equal vigour. Another decade of mindless insistence on the seven sacrosanct foundations will do a great deal of harm, with no compensating good. One supposes that the people of Poland and East Germany used to contemplate their stubbornly stupid regimes and both see their stupidity and suppose them beyond all possibility of change. The question now is whether perhaps the regime of the seven foundations can be made to crumble sooner than currently seems possible.

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Resource Accreditation

The careful reader of the document will notice that it contains a warning that the professions are getting into the business of resource accreditation. That could do a great deal of good. Unfortunately it could also do huge damage. Last year the SPTL had to take steps to stop the Law Society putting round an unimaginably bad library list. The full story can be read in the SPTL Reporter. That list would have disabled all law schools in their fight within their own universities for adequate resources. It was prepared by someone who did not know what he was doing. If there is to be resource accreditation it should be done by LCACLEC, not by one or both professions. They promise consultations, but a vital national interest is not safe in the hands of a consultation process which is clay in the hands of the consulters.

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APPENDIX

THERE FOLLOWS THE FULL TEXT OF THE NEW JOINT ANNOUNCEMENT

NOTICE TO LAW SCHOOLS

REGARDING FULL-TIME QUALIFYING LAW DEGREES

ISSUED JOINTLY BY THE LAW SOCIETY

AND THE COUNCIL OF LEGAL EDUCATION JANUARY 1995

The following Joint Announcement has received approval under the Courts and Legal Services Act 1990. It is effective for law degree courses commencing in the academic year 1995/96.

Introduction

In the past, the Council of Legal Education and the Law Society imposed requirements about core subject teaching which had to be satisfied if a degree was to be accepted as a qualifying law degree. Compliance with model syllabuses was required, and methods of assessment and minimum teaching hours specified. These requirements were reviewed between 1987 and 1990 by representatives of the professions and academic bodies in a working group set up by the Lord Chancellor's Advisory Committee on Legal Education. The 1990 announcement made it clear that the central features of the compulsory core would need to be reviewed periodically. Following a consultation exercise in Summer/Autumn 1992 by the Law Society the requirements have been further reviewed by representatives of the professions and academic bodies.

The discussions have centred on the major developments in the law and in legal education since May 1990. As a result, while the professional bodies continue to reserve the right to refuse to recognize degrees when they are not satisfied with the course content or methods of assessment, certain changes, which are described in this statement, are now being made. The standard of the appropriate resources needed to support a qualifying law degree will be the subject of further discussions between the professional bodies and the representatives of the university law schools.

This Joint Announcement will be subject to review by the Law Society and the Council of Legal Education in the light of the conclusions of the review by the Lord Chancellor's Advisory Committee on Legal Education and Conduct of the initial stage of legal education.

That review will be undertaken by 1998, with a view to the professional bodies deciding by the end of July 1998 whether an application should be made under the terms of s.29(4) Courts and Legal Services Act 1990 to amend the Joint Announcement to take account of the conclusions of the Advisory Committee's review, and both bodies fully expect that such an application will be made.

Statement of the Foundations of Legal Knowledge

The course outlines for the six core subjects will be replaced by the attached statements of the seven foundations of legal knowledge which have been produced following discussions with the representative bodies of university teachers and heads of university law schools. They arise from the fact that all prospective solicitors and barristers need a common grounding in these seven law foundations and because the vocational courses build on the students' knowledge of these foundations and must therefore be able to presuppose certain levels of familiarity, knowledge, awareness and appreciation. The foundations of the new academic stage core also provide the basis for continuing legal education and professional development by providing solicitors and barristers with the necessary knowledge necessary to enable them to break into new areas of law.

Nevertheless, we recognize that law degree teaching, not least in relation to the foundations which typically dominate the first two years of degree courses, must serve other objectives, and that in a limited time it is not easily to fulfil all these objectives. Certainly we do not wish to frustrate or impede the proper teaching of law at the first degree level and we recognize the validity of a variety of approaches to any subject - whether comparative, jurisprudential, historical, emphasizing policy and reform, contextual teaching, interdisciplinary (for example, economic analysis of contract or tort) or clinical - to take just some examples. We would not want to see the intellectual richness of law school teaching diluted or these different scholarly approaches inhibited; nor do we want to see curricular developments obstructed or discouraged.

We must nevertheless be able to expect a coverage of certain central and essential features of the foundations for those students coming to the vocational courses. These features need to be reviewed periodically. Otherwise students may not receive a coherent introduction to the fundamental concepts and the social context which shapes the way in which law develops and is practised. In addition students should receive a sound grounding in the basic techniques of legal research, statute and case law analysis and the development of written and oral communication skills in a legal context. Provided an institution is able to show that the teaching and assessment of the foundations satisfies these conditions, we are willing to offer recognition.

The statement makes no attempt to lay down a detailed syllabus; nor should the statement be taken as constituting a full course. We anticipate that students will in addition, wherever possible, be encouraged to study at least one optional area of law to enable them to apply the knowledge and principles introduced in the foundations to a new area of legal study. The foundations together constitute the minimum areas of knowledge, understanding and intellectual skills, leaving it to individual institutions and teachers to determine the precise shape and content of their own courses. It is not necessary for the foundations to be taught under any particular title or in a single course. Indeed there is value in encouraging students to work across traditional subject boundaries.

The foundations of law outlined on pages 6 and 7 of this statement provide the minimum legal knowledge and intellectual skills for completing the academic stage of legal education for the legal profession of England and Wales. In addition to the foundation subjects a qualifying law degree must contain study of basic legal research skills. These skills do not necessarily form a separate subject but are skills to be imparted in the learning of the law.

Assessment and Teaching Hours

The 1990 announcement relaxed the previous requirements so far as assessment and examining are concerned; the only requirements continue to be that the professional bodies are satisfied that each foundation will be properly assessed. The methods of assessment will be for each institution to decide. We recognize the value of employing a variety of methods of assessment where resources allow, rather than relying solely on one method such as written unseen examinations.

Since 1990 the minimum teaching hours have no longer been specified. In future the requirement of a qualifying law degree (whether a single honours degree in law, a joint honour degree or a mixed honours degree) will be that:

(i) study of the legal subjects must include study of seven (7) foundation subjects and must occupy not less than one half (1/2) of a student's work-load in a three (3) year degree course and three eighths (3/8) in a four (4) year degree course: and

(ii) study of the seven (7) foundation subjects must occupy not less than seven eighteenths (7/18) of a student's workload in a three (3) year degree course and seven twenty-fourths (7/24) of a student's workload in a four year degree course.

Expressed in modular terms, which will frequently be the case, this will amount to nine (9) modules in an eighteen (18) module three (3) year degree course. Each of the foundation subjects must occupy not less than one sixth (1/6) of a student's total work-load in a normal academic year. This will represent one (1) module in an eighteen (18) module three (3) year degree course. Consequently, the study of the foundation subjects will constitute seven (7) modules and there will then be a minimum of two (2) modules available for optional law subjects, making the minimum nine (9) modules indicated above. The requirement of nine (9) modules for the new academic stage core subjects will also apply to a four (4) year degree course of twenty-four (24) modules in order for qualifying law degree status to be granted.

The recognition of two (2) year full-time senior status law degrees, two (2) year full-time intensive study law degrees and four (4) to six (6) year part-time law degree as qualifying law degrees will be decided by discussion between individual universities and the professional bodies using as a basis the requirements for a three (3) year full-time qualifying law degree.

In assessing whether a course scheme allots sufficient time to the study of the foundation subjects, time spent on studying the foundation subjects within optional law subjects will not normally be taken into account. However, an institution wishing to use options to any extent to cover the foundation subjects will be expected to identify to us and to students the 'pathways' which contribute to a qualifying law degree. This notification must be given to students before they embark on their degree studies, and will need to demonstrate that the courses are structured in such a way that, whatever options are chosen, all students will receive appropriate instruction in all the foundation areas.

There will be no fixed requirement for the teaching of he legal research skills outlined on page 7.

The Law Society and the Bar will exercise their discretion in relation to the recognition of qualifying law degrees, in particular so far as calibration of modules is concerned, in a positive, practical and flexible way which involves the minimum disruption for law schools.

Although all law schools will be required to introduce EC law as a compulsory area for students beginning their courses in 1995, the new calibration requirements will be introduced only as law schools apply to the professional bodies for approval of new or amended courses or are subject to quinquennial review.

QUALIFYING LAW DEGREES: THE FOUNDATIONS OF LEGAL KNOWLEDGE

INTRODUCTION

The objective of identifying the foundations of legal knowledge is to ensure that all students who intend to qualify as professional lawyers will have demonstrated:-

(i) an understanding of the fundamental doctrines and principles which underpin the law of England and Wales:

(ii) a basic knowledge of the sources of that law, and how it is made and developed; of the institutions within which that law is administered and the personnel who practise that law;

(iii) an appreciation of the social and other pressures that shape the development of the law of England and Wales;

(iv) the intellectual and practical skills needed to research the law on specific matters and to analyse both stature and case law, to apply it to the solution of legal problems and to communicate - both in writing and orally - the results of such work; and

(v) the ability to reflect on the fundamental social concepts such as justice, liberty and rights, and the contribution that the law makes to the advancement of those principles.

The seven Foundation Subjects are:

OBLIGATIONS I

The foundations governing the formation and enforceability of contracts, together with their performance and discharge, including the remedies available to parties and the doctrine of privity. An outline of the law of restitution.

OBLIGATIONS II

The foundations of tortious liability (including vicarious and joint liability) and the remedies in respect of torts (including damages). There should be a sufficient study of the major torts (such as negligence, nuisance, intentional interference with the person and defamation) to exemplify the application of the general principles and the defences, and to familiarise the student with the principal torts and their constituent elements.

FOUNDATIONS OF CRIMINAL LAW

The general foundations of criminal liability and a sufficient study of the major offences (such as homicide, non-fatal offences against the person and theft) to exemplify the application of the general principles and familiarise the student with the principal offences and their constituent elements.

FOUNDATIONS OF EQUITY AND THE LAW OF TRUSTS

The relationship between Equity and Common Law. The trust as used for family or commercial or for public charitable purposes. Express, resulting and constructive trusts of property. Trustees' powers and obligations. Nature and scope of fiduciary obligations. Nature and scope of equitable rights and equitable remedies, especially tracing, Mareva injunctions, Anton Piller Orders, specific performance, imposition of personal liability to account as a constructive trustee, estoppel entitlements to property or compensation, the developing principle of unconscionability.

THE FOUNDATIONS OF THE LAW OF THE EUROPEAN UNION

The political institutions and processes of the European Communities. The European Court of Justice and its jurisdiction. Sources and general principles of the Law of the European Union. The relationship between the Law of the European Union and National Law. An introduction to the main areas of the substantive law of the European Union.

FOUNDATIONS OF PROPERTY LAW

The foundation concepts of land law, the relationship between the common law and equitable rights, the scope, nature and effect of estates and interests in land. An introduction to the strict settlement, trusts for sale and so-ownership and, in essentials, the relationship of landlord and tenant. An introduction to registered conveyancing.

FOUNDATIONS OF PUBLIC LAW

The basic features and characteristics of the constitution. Constitutional law should cover the main institutions of government (Parliament, Executive and courts) in the United Kingdom and the European Union; Civil Liberties and the European Court of Human Rights; the sources of law and the law making processes.

Administrative Law should cover administrative powers and their control, especially by judicial means (including judicial review).

The criteria for LEGAL RESEARCH are:

The ability to analyse a problem involving a question or questions of law, and through research to provide a solution to it. This involves the ability

(i) to identify and find relevant legal sources and materials;

(ii) to extract the essential points from those legal sources and materials;

(iii) to apply the law to the facts of the problem so as to produce satisfactory answers to the question posed; and

(iv) to communicate the reasons for those answers, making use of legal sources and materials.

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