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Raising the Drawbridge: Defending University Law Schools
by
Anthony Bradney
The University of LeicesterCopyright © 1995 Anthony Bradney. First published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
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Summary
This article considers the implications for legal education of the consultation paper produced by the Lord Chancellor's Advisory Committee on Legal Education. It seeks to analyse the broad themes of the paper in the light of the changing context in which legal education and university education generally takes place.
Contents
- Introduction
- The Function of the Law Degree
- Prescribing Teaching, Prescribing Content
- ACLEC's Suggestions for Content
- The Assessment of Quality
- Conclusion
- Bibliography
Introduction
In 1971 the Ormrod Committee sought to lay down a pattern for the relationship between academic and professional legal education (Report of the Committee on Legal Education, Cmnd 4595, 1971). Now, over 20 years later, the Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC) has produced a consultation paper which attempts to do the same thing. This article will consider the implications of this consultation paper, assessing them in the light of debate about university education in general and legal education in particular. It will look at the broad themes of the paper but will begin by analysing the changing context within which legal education has to be reviewed.
The academic world of university law schools has changed considerably in the intervening two decades between the papers. Ormrod reported that 1,449 law students graduated from universities in 1970 (Ormrod 1971, p 53). In 1993-94 the Universities' Statistical Record recorded a total of 16,654 law undergraduates in traditional universities (University Statistics 1994, p 27). Ormrod listed 22 law schools in traditional universities in England and Wales (Ormrod, 1971, p 116). In 1994 the HEFCE subject report for law listed law teaching at 31 traditional universities (Quality Assessment of Law 1993-94, 1994, Annex). Growth in law teaching in the traditional university sector has been more than matched by growth elsewhere. Ormrod listed only 6 law schools outside the traditional university sector (Ormrod 1971, p116). In 1994 the HEFCE subject reported listed law teaching in 36 institutions which were not traditional universities (Quality Assessment of Law 1993-94, 1994, Annex). Quantitative changes have been matched by qualitative changes. "Law teachers have...grown apart from practitioners" (Abel 1988, p 268). In 1966 68% of law teachers had thought it normally necessary to have experience of practice (Wilson 1966, p 31). However, at that time the position was changing: 28% of law teachers with less than 5 years experience of teaching had experience of practice (Wilson 1966, p 32). By 1975 the number of part-time law teachers, mixing practice and academic work, had dropped from one in four in 1966 to one in six (Wilson and Marsh 1975, p 270). By 1993 five traditional university law schools forbade all practice by their teachers and others allowed only such practice as did not conflict with their staff's normal teaching duties (Wilson 1993, p 161). In 1989 the Committee of the Heads of University Law Schools stated that "[a]nyone spending significant time on outside activities instead of teaching, research and administration would be failing in his or her duty to the university..." (Committee of Heads of University Law Schools 1989, p 8). Postgraduate legal education has boomed. In the 18 years between Wilson's second and third survey of legal education in the United Kingdom the number of postgraduate students rose by 152% (Wilson 1993, p 155). The same period saw a staff increase of only 16% (Wilson 1993, p 156). Overall staff/student ratios worsened, increasing from 1:12 to 1:17 (Wilson 1993, p 157). In 1975 seven traditional university law schools used postgraduate students for teaching purposes (Wilson and Marsh 1975, p 270). Eighteen years later the figure had risen to 23 (Wilson 1993, 158). University law schools now face external assessment of both teaching quality and research quality. In their 1975 survey of legal education Wilson and Marsh had noted "the prevalent belief that the standard of undergraduate teaching is to a large extent dependent on the amount of research work being undertaken in a particular faculty..." (Wilson and Marsh, 1975, 265). Although the idea of a necessary connection between research quality and teaching excellence might be debatable the linking of teaching quality and research quality has now received institutional support. In the recent HEFCE assessments of the quality of teaching in university law schools 12 of the 19 law schools graded "excellent" were expressly commended for the link between their research and their teaching. (See HEFCE Quality Assessment Reports on King's College London para 9, London School of Economics para 7, School of Oriental and African Studies para 18, University College London para 16, University of Essex para 11, University of Leicester para 5, University of Liverpool, para 10, University of Manchester para 25, University of Nottingham para 6, University of Oxford para 19, University of Sheffield para 13 and University of Warwick paras 28, 36). In most of the remaining reports on "excellent" law schools the link between teaching and research was implicit. Changes in the environment for university law schools have forced them to grapple with both the problems of mass-market higher education and the imperatives of research and scholarship.
The new context within which university law schools find themselves should affect the way in which they respond to the ACLEC's consultation paper. Without extra resources it is now impossible for university law schools to do anything in addition to that which they are currently doing. They can in some cases vire funds from one activity to another. Even this possibility is limited with some funds being ring-fenced to prevent such adjustments. Many of the matters raised in ACLEC's consultation paper depend primarily upon the resource unit available to university law schools. In the current circumstances any suggestion made by the ACLEC which has resource implications for university law schools can only be implemented by the law schools if they withdraw resources from some other part of their activities or attract extra funding. University law schools, literally, cannot afford to take a relaxed attitude towards the ACLEC's report.
Another important change for the university law schools is their increasingly international character. This character takes many forms. The Government, in its differential funding policy for home and overseas students, has encouraged law schools to believe that their international nature is not merely a matter of their history (the first European law school was in Bologna drawing students from all over Europe) but an important element in their present constitution (Radding 1988). Of the 16,654 undergraduate students in university law schools in 1993-94, 2,692 had other than home fee status and 3,351 has an overseas domicile (University Statistics 1994, p 27). At postgraduate level in the same year 1,143 of the total 3,492 students had a fee status of other than home-fee. 1,599 postgraduate law students were domiciled abroad (University Statistics 1994, 30). As with students so increasingly with staff. The HEFCE report for the University of Warwick, for example, noted that 30% of its staff were from abroad (Quality Assessment Report, University of Warwick 1994, para 26). The figure at my own institution, the University of Leicester, is 16%. No doubt many other law schools could produce similar figures. Law itself is an increasingly international creature. It has not just a European character (due to the influence of European Union law and the European Convention on Human Rights) but a global quality. Legal reforms transplanted from other jurisdictions, bipartite and multipartite international agreements and the global nature of the world economy all combine to make the international dimension something no successful law school can afford to ignore. The allocation of funding for research funding is based on a rating system where the highest ratings are given to those who attain international excellence; lower ratings to those who merely achieve national competence (HEFCE, 1994a, Annex B). The achievements of British law schools are not just assessed by their national constituency. British undergraduate law courses have already been reviewed by the Singapore authorities. Only 15 were approved for the purposes of qualifying as a professional lawyer in Singapore (Report on the Legal Profession 1993, para 5.13). Malaysia is currently in the process of completing a similar review (New Straits Times, 31st October 1994). ACLEC's brief is parochial (s 20 Courts and Legal Services Act 1990). University law school's responses will have to be addressed as much to their international constituency as to ACLEC.
University law schools will need to be cautious and careful in their response to ACLEC's consultation paper. They will need to bear in mind the very wide range of student interests that they address and their duties as a part of a university. Law schools have developed rapidly in the past three decades (Bradney 1992). The purpose of this article is to highlight both those elements of the consultation paper which are beneficial to university law schools and those which might hinder continued improvement.
The Function of the Law Degree
Any analysis of the relationship between academic and professional legal education inevitably begins with a consideration of the purpose of the law degree. Given the provenance of the consultation paper it is not surprising, though it is no less regrettable, that ACLEC's description of the functions of the degree concentrates on the use the student might make of the degree in subsequent employment. Four out of the five functions noted by the consultation paper are linked specifically to being a lawyer (ACLEC, 1994a, para 2.1). ACLEC's consultation paper explicitly states that references to "'[l]awyers', means not only members of the practising profession, but all skilled in the discipline of law" (ACLEC 1994a, para 2.1). ACLEC notes that less than half of all law graduates now go on to become practising lawyers and that "[u]niversity law degrees will continue to be the foundation for a wide variety of careers, not just the practising legal profession" (ACLEC 1994a, para 1.21). However, this does not mean that ACLEC has resisted the notion of a primarily vocational function for the law degree. Lawyers are not, for ACLEC, just those versed in the discipline of law. Instead, for them, the term carries occupational rather than intellectual implications. The paper distinguishes between "intellectual and other skills associated with degree-level education" and "the analytical and conceptual skills needed by lawyers" (ACLEC 1994a, para 2.1). Since "intellectual skills" presumably refers to high order cognitive skills which underpin and infuse all academic disciplines this dichotomy makes sense only if the phrase "analytical and conceptual skills needed by lawyers" refers either to low level technical skills particular to law (for example, the use of citators) which are not in fact "analytical" or "conceptual" or to professional skills which are not intellectual. The majority of the five functions listed by ACLEC carry vocational connotations. One function refers specifically to "the practising profession" (ACLEC 1994a, para 2.1). Another of the functions of the degree described by ACLEC is the development "of the independence and robust ethical standards expected of a lawyer" (ACLEC 1994a, para 2.1); something which makes sense when the degree is conceived of as occupational training, albeit for a wide range of legal jobs, but not if it is merely seen as academic enquiry. A third function of the law degree is said to be to enable vocational training to be "comparatively short" (ACLEC 1994a, para 2.1).
ACLEC's description of the function of a law degree certainly constitutes an advance over that given by the Ormrod Committee. Ormrod described the purpose of a law degree as being "to provide him [the student] with the equipment which he will need and can use throughout his professional life to ascertain law as and when he wants it" (Ormrod, 1971, para 102). ACLEC's first function is "to develop the intellectual and other skills associated with degree-level education" (ACLEC 1994a, para 2.1). It is only after stating this first function that the consultation paper goes on to enumerate other functions more specifically linked with being a lawyer. Even so, in considering the appropriateness of ACLEC's description, it is important to remember that universities exist to educate students not workers. In the most detailed survey of the attitudes of university and polytechnic law lecturers carried out to date Macfarlane, Jeeves and Boon reported that the majority of lecturers regarded providing those general intellectual skills associated with a liberal education as being first in their priorities (Macfarlane, Jeeves and Boon 1987, p 836). In a similar vein, in an edited version of his contribution to a seminar on the teaching of contract law, Brownsword argued that the correct response to the question "did he seek to make his students really good lawyers" in his teaching should have been "no, really good citizens" (Brownsword 1992, p 48). He went on to note that to be a really good lawyer one first had to be a really good citizen. This argument is not new. In the last century Newman, in his classic text on the nature of the university, argued that the "training of the intellect, which is best for the individual, best enables him to discharge his duties to society." (Newman, 1966, 134) Universities seek to provide their students with the intellectual means to make better choices about their lives. This includes the means to select and pursue the occupation which best suits their talents and their aspirations. It should, however, go far wider than this occupational aim. "Education is not synonymous with training, least of all training for specific jobs" (Arblaster 1974, p 20) Having left university a student should be in a better position to decide the proper relationship between their chosen occupation and the rest of their life. A university education should improve not just the graduate's life as a worker but life the hours they spend outside work and the years they spend once they have retired. A university education which simply or primarily made the student a better worker would, no matter how successful it was in this aim, fail as university education (Reeves 1988, ch 1). Even the Committee of Heads of University Law Schools, not a notably radical body, in their draft response have described ACLEC's description of the function of the "initial stage" as "training" as "unfortunate" since the aim of the law degree is education (Committee of Heads 1994, para 2.4). The "initial stage" (ACLEC's description of the law degree) is for many students the only stage in their higher education (ACLEC 1994a, para 1.6). Even for those students who go on to become lawyers the university stage is the only stage whose focus is directed towards them as a person rather than them as a lawyer. In the second consultative conference on the consultation paper, run by ACLEC, Arthurs' keynote address highlighted the importance of humane professionalism in legal education (ACLEC, Morning Session Keynote Speaker, 1994b, 1). The university's primary focus lies in allowing the student to explore their humanity; its primary role in creating a "humane professional" is in giving the student the ability to put the demands of working life and professional standards into the context of ethical and social imperatives. Any description of the function of the "initial stage" is substantially impoverished if its does not give these wider functions much greater priority than the narrower needs of the lawyer.
The occupational bias of the paper is made more plain when the paper states that the degree must "encourage people from the widest possible range of backgrounds, abilities and skills to become barristers or solicitors" (ACLEC 1994a, para 2.4). It is not the function of the university law school to encourage anybody to become lawyers or to pursue any other particular occupation. The suggestion that law schools should encourage students to think about the virtues of becoming a lawyer is very similar to the instruction to faculties of Divinity under Elizabeth I to teach students "a due sense of the evils of popery" (Russell 1993, p 21). A law degree might properly be taught with little reference to either barristers or solicitors. What reference there is need not persuade people either to become or not to become lawyers. University law schools concern themselves with the study of law not lawyers. There is some force in the argument that, hitherto, in studying law university law schools have concerned themselves too much with an abstracted theory of law rather than with the empirical reality of law (Morison and Leith 1992). Yet, at the same time, it is also true that the this empirical reality can owe almost nothing to the work of lawyers (Beale and Dugdale 1975). In looking at how law functions a law school might do nothing which would encourage somebody to enter the legal profession just as in the study of literature one might do nothing that would encourage a student to become an actor. It is for the legal professions to market themselves in such a way as to encourage those from the widest range of backgrounds to join them just as other professions seek to attract the brightest and best students.
Prescribing Teaching, Prescribing Content
A large part of ACLEC's consultation paper is concerned with suggestions about the different ways in which the quality of teaching might be measured and improved and proposals for the prescription of the content of the degree. The first question raised by both these ideas is, to what extent is any person or institution, outside the university, qualified to comment on the workings of the university? Should the proper response of university law schools to these parts of ACLEC's consultation paper simply be to say that the decision what to teach and how to teach is, on grounds of academic freedom, purely a matter for the universities? To put the matter in more general terms, is the university, and hence the university law school, accountable to the state or to society for what it does and, if it is accountable, in what way is it accountable?
"Not many years ago, any attempt to measure the performance of institutions of higher education would have been regarded with horror in academic circles. Attitudes have changed very rapidly during the 1980s, however, as a result of the government's determination to make the public sector more accountable to the taxpayer. This has inevitably led towards the more careful scrutiny of the way in which the taxpayers' money is being used in order to discover whether the public sector's efficiency could be improved. All parts of the public sector - including higher education - are now expected to monitor and evaluate their activities more carefully than has hitherto been the case." (Johnes and Taylor 1990, p 1)
The argument can be put in these terms. The state has a right to see that it's moneys, on which universities are largely dependent, are properly and efficiently spent. The Government acts as the agent of the state. On one level the work of ACLEC can thus be seen as simply yet another example of the Government taking more seriously it's responsibility for regulating, and seeking to improve, the standard of education in the United Kingdom (Pratt 1994, p 4). On this view the legitimacy of ACLEC's statements lies in the fact that they emanate from an organ of the Government (this notwithstanding the fact that ACLEC "shall not be regarded as the servant or agent of the Crown" (Courts and Legal Services Act 1991 s 19(6))). An analogy might thus be drawn between the Government's creation of a compulsory National Curriculum in primary and secondary education in state schools (Education Reform Act 1988 s 2) and ACLEC's suggestions for the content of law degrees.
The difficulty with this easy acceptance of state enquiry into universities is that, as has already been observed by others, no simple parallel can be drawn between university education and other forms of education.
"A National Curriculum at school is not objectionable, for Government may, within reason, be entitled to demand that schoolchildren should be brought up to a certain level of education, as a minimum. But with universities it is different: they must be seen as the source of new knowledge, the origin of that critical, undogmatic, imaginative examination of received wisdom without which a country cannot be expected to have its voice heard, and from which all intellectual standards flow....There is nowhere else that such intellectual authority can come from but the universities themselves." (Warnock 1989, p 42)
Although they are financially dependent on the state universities have long argued that they are intellectually autonomous; that academic freedom is central to their existence.
"The citadel of academic freedom is of course the principle enshrined in the Academic Freedom amendment [Education Reform Act 1988 s 202(2)(a)] : the freedom for academics within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions without placing themselves in jeopardy. It is freedom to follow a line of research where it leads, regardless of the consequences, and the corresponding freedom to teach the truth as we see it..." (Russell 1993, p 18)
Academic freedom is like clinical freedom in medicine. Both freedoms arise because of the unique qualifications of those who claim the freedoms. Just as no-one, without medical training, can make a sensible judgement about the medical advantages of two courses of treatment so no-one, outside the academy, is qualified to judge the academic merits or demerits of what goes on in the academy. University education, following this argument, is not simply another species of education like primary, secondary, further or technical education. It is something which is sui generis. This is not to say that the benefits of having universities cannot be judged by those outside the academy. Again there is an apt analogy with medicine. An individual, or the state, may decide that they prefer the benefits of alternative therapies to conventional western medicine. In expressing such a preference the individual or the state brings a very limited understanding of those therapies and that medicine and a unique understanding of it's own best ends. In the same way an individual or the state may decide that it prefers to fund armies rather than universities. Preferences about what to fund are one thing; pretence at an ability to understand things on their own self-declared merits is another. Academic freedom, again like clinical freedom, is as much for the benefit for those outside the academy, or those who are not doctors, as it is for those who are within the academy, or those who are doctors.
"It is the central justification of academic freedom that without it, Governments funding Universities will not get what they pay for. As Lord Swann remarked: 'Governments, after all, don't know how to do research, or how to teach'. That is why they pay others to do it for them."
(Russell 1993, p 27)
None of this is to deny that those outside the academy, or those inside the academy who are not academics, have a legitimate role to play in initiating debate about matters within the academy by publishing papers such as that by ACLEC but
"such a paper has no authority in its own right. It takes on its authority through the assent of the relevant group of academics. The purpose of the paper is not just to stimulate discussion, but to promote a consensus amongst the academics with whose interests it intersects."
(Barnett 1993, 179)
This general argument can be put into the specific context of law schools and bites most effectively when applied to teaching in university law schools.
ACLEC devotes one section of its consultation paper to discussion of ways of improving teaching quality and methods for arriving at criteria for assessing teaching quality. The question here is, on what is this discussion based? If the answer is, the experience and comments of those members of ACLEC who are academics and the work of the academic consultants appointed by ACLEC, this only begs the question what authority does ACLEC itself have? How can it assess what are good arguments and what are not? Should not the questions about teaching be left to those of its members who are academics? If they are to be left to those of its members who are academics why these academics rather than the academy as a whole? If the answer is, ACLEC itself, taken as a whole, is presumed to have the experience and knowledge necessary to set the agenda for debate on teaching quality then the question is from whence is this experience and knowledge derived? One faintly ludicrous aspect of the recent HEFCE assessment of teaching quality was the sight of some assessors, from outside universities, who had no training in university teaching, no experience in university teaching and thus, presumably, no knowledge of university teaching, sitting in individual classes and assessing the quality of that teaching on a three point scale from "excellent" to "unsatisfactory". ACLEC's remarks on teaching are simply another example of the same phenomenon; albeit on a grander, more subtle and more sophisticated level.
Arguments such as those above should not be used to ignore the legitimate concerns of ACLEC. ACLEC's interest is not in validating university law schools but in assessing whether or not particular law degrees are suitable for those who wish to pass on to professional qualifications: specifically it is in considering whether or not possession of a particular degree should exempt a person from Part I of the professional examinations to become a barrister or a solicitor. University law schools choose to offer themselves for such validation. They are not compelled to do so. University law schools which do not meet standards set by ACLEC, the Law Society, the Bar Council or any other external body are still free to teach in any way they wish. Academic freedom is thus not impinged. ACLEC, the Law Society and the Bar Council have social and, in some cases legal, obligations to ensure that lawyers are properly trained (see, for example, Solicitors Act 1974 s 2). This powerful argument for the right of ACLEC to make its own assessment of the quality of university law degrees is given added impetus by the failure of universities to police themselves satisfactorily in the past.
In its recent assessment of teaching quality HEFCE initially graded one law school as "unsatisfactory" (Quality Assessment Report, University of Derby 1994). This fact must be of concern not just to that law school but to all university law schools. If universities claim academic freedom as a defence against external enquiry they must then accept the responsibility for ensuring that they live up to the appropriate academic standards. Academic freedom means not just a permissive liberty to question and criticise and to report the results of that questioning and criticism to students and to others but a mandatory duty to engage in these activities. Law schools themselves must be objects of this enquiry as much as the outside world. (Indeed, since universities must claim the rare status of not justifying their efficiency and efficacy to the outside world there is a strong argument for saying that law schools must the subject of fiercer and stricter internal enquiry than any legal phenomena outside the university.) Just as a doctor is obligated to draw attention to another "doctor" who is completely failing to meet all professional standards, so university law schools are obligated to speak out when institutions wholly fail to adhere to those duties concomitant with being an academic. This they have failed to do. There are good grounds for thinking that the problem of poor academic governance in university law schools runs deeper than HEFCE's identification of one institution. One example will suffice to illustrate the point. HEFCE's subject report for law stated that "[i]n all cases except one, the library provision [in university law schools] was excellent or satisfactory" (HEFCE Subject Report 1994, para 37). Another source produce a different story. In a survey conducted by the Association of Law Teachers of the 32 new universities who responded 30% reported that their library resources were poor or very poor (Harris and Bellerby 1993, p 61). It is very difficult to see how such law schools can in fact be excellent or satisfactory.
Distinguishing between attempts to dictate the style of university teaching and suggestions about what outcomes are acceptable for purposes external to the university involves a simple but vital point. For those outside the academy to argue about the form and quality of university teaching is for them to debate matters about which they are, almost by definition, ignorant; for those outside the academy to decide what kinds of university graduates they wish to welcome into their occupations might, as I shall argue below, sometimes involve them in mistaking their own best ends but is something about which they have sufficient knowledge to make a reasoned decision.
If it is accepted that ACLEC has a legitimate right to assess whether or not it thinks law degrees are suitable for exempting graduates from professional examinations it can then also be argued that ACLEC might have a positive role to play in protecting university law schools against their own parent institutions and their own lack of courage. A major change in tertiary education has been the creeping managerialism in universities which developed through the 1980s and 1990s (Becher and Kogan 1992, ch 10). In law schools this managerialism has been characterised by a "minimalist attitude to law...[ which has gone] hand in hand with the view that the main purpose of legal education...[is] to make lawyers rich. It cannot be denied that the law schools have fought these influential attitudes very feebly" (Swadling 1994, p 3). Undergraduate legal education has been perceived by central university authorities to be a cheap way of attracting high quality applicants. The result in some cases has been under-resourced law schools with the worsened staff-student ratios and poor libraries noted above. Law schools have always had the ability to prevent these consequences by simply refusing to teach students if adequate resources were not available. However, a combination of factors, including the possibility of consequent job losses, reduction of promotion prospects and loyalty to their parent institutions has meant that they have not used this power. ACLEC's various different suggestions for the content of law degrees might both stiffen the resolve of university law schools and offer them a bench mark to use in their negotiations about resources. In this sense they are comparable with the SPTL's statement of minimum holdings for libraries (Weston 1993). ACLEC is plainly aware of the financial difficulties of university law schools. The Chairman's Foreword to ACLEC's consultation paper ends with the observation that the "challenges [of maintaining and improving] legal education cannot be met without further commitment of funds" (ACLEC 1994a).
ACLEC's Suggestions for Content
To say that ACLEC has a legitimate right to consider the content of law degrees is not necessarily to approve the particular suggestions made by ACLEC. Before deciding how a prescribed element should be made part of a law degree it is necessary to decide what that prescription is intended to achieve. It might either be intended to ensure that graduates have a minimum knowledge of legal rules, a minimum level of skills, a minimum intellectual attainment or some combination of all three.
To date the English legal professions have accepted that the necessary legal knowledge attained at degree level is fairly low. Joint courses accepted for accreditation purposes may contain no more than 50% law. The conversion course for non-law graduates, which provides them with the minimum level of legal knowledge necessary for Part I professional purposes, is completed in one year. This approach accords with academic research which suggests that lawyers spend little time in their professional lives in the direct use of pure law. Campbell, for example, suggested one hour per week for Scottish solicitors (Campbell 1976, p209). (This figure will obviously vary depending on the type of lawyer under consideration.) When they do use law, lawyers are likely to be concerned with law they have never met in their academic studies. A study by the Law Society suggested that a majority of solicitors handled at least 10 to 15 categories of work after their qualification. (Chambers and Harwood 1990, p 13) It is unlikely that any solicitor would meet all of these categories in their undergraduate legal studies. A study conducted for the Bar suggested that the major problem for barristers was their lack of knowledge of procedure; a subject little researched or taught in university law schools (Johnston and Shapland 1990, pp 37-40). Lawyers' needs for factual legal knowledge, their need for knowledge of legal rules, is thus of relatively little importance in the context of their university studies.
Despite the relative lightness which the professional bodies have brought to prescribing subject areas (the 6 core subjects required by the English professional bodies compares favourably with, for example, the number required by the Israeli Bar) ACLEC's consultation paper observes that "[t]he arguments against basing approval of a course on prescribed subjects and content are impressive" (ACLEC 1994a, para 3.3). The paper lists three main objections; that prescribed subjects tend to be taught first in the curriculum leading to shallowness of learning, that the quantity that is prescribed tends to expand inexorably and, finally, that subject-based prescription tends to encourage learning of things having "core" status rather than understanding of the discipline of law and its associated processes as a whole (ACLEC 1994a, para 3.3-3.4). In place of subject-based prescription ACLEC suggests an approach based upon a statement of broad aims for a law degree supplemented either by a prescription of outcomes for students or a description of some of the main areas to be covered or by some combination of both (ACLEC 1994a, paras 4.6-4.14).
ACLEC's new statement of aims dramatically change the nature the nature of the law syllabus. The draft response of the Committee of Heads of University Law Schools could be taken to dispute this view since it states that "most law schools would claim already to aspire" to teach the broad aims suggested by ACLEC (Committee of Heads of University Law Schools 1994, para 2.6). Whilst that claim might be made its veracity is open to doubt. All law schools would probably claim that they give their students an understanding of the fundamental principles of law (the first aim). Fewer could legitimately claim that they provided "a rigorous theoretical and analytical education" for all their students (the second aim) if this is to be put on the same level as the first aim. Fewer still could they say that they equally aspire to put law within "its social, economic, political, historical, ethical and cultural context" (the third aim) and very few could legitimately claim that their courses were informed by "comparisons from other legal systems" (the fourth aim) (ACLEC 1994a, para 4.6). Most law schools at best genuflect to these last three aims. HEFCE's subject report on law concluded that whilst "excellent" teaching was characterised by "content of a high-quality, offering up-to-date and reflective commentaries on the law" "[t]here were course where teaching did not include intellectual challenge" (HEFCE Subject Report 1994b, paras 16, 19). 19 university law schools were rated as "excellent". The rest (with one exception) were said to be as "satisfactory" (HEFCE Subject Report 1994b, Annex). Too much reliance on HEFCE observations must be avoided given the probable methodological difficulties in the way in which they gathered and analysed data (Brownsword, 1994). However, it seems unlikely that many would wish to deny this particular conclusion about the nature of English law teaching. ACLEC's report will add both intellectual and institutional support to the arguments of those who have sought to add depth to the law school's curriculum.
Not all parts of all the aims suggested by ACLEC could be said to have equal educational value. Putting law in its ethical context, as ACLEC suggests, seems to owe more to ACLEC's perception of the vocational purposes of university law teaching than to an understanding of the need, through a liberal education, to alert students to the context of values in which everything must be seen (Leavis 1948). Comparative law is seen by ACLEC as being a comparison with civil law and international law. Again this seems to owe more to ACLEC's perception of the needs of the practising lawyer than to a comprehension of the value of the comparative method (Kahn-Freund 1937). Even then, ACLEC seems interested only in short-term consideration of the United Kingdom's immediate major trading partners and fails to look at the longer-term prospects of the burgeoning markets in the Pacific Rim or the Islamic world. However, whilst university law schools will need to be careful not to make major changes to their syllabus merely to conform to the perceived, and necessarily ephemeral, needs of the legal professions which one national group of their students may wish to join, it would be churlish not to notice the enhanced educational value that this new statement of aims brings to the law syllabus. The comparative method, the appreciation of the social, cultural and political context of law and a rigorous theoretical analysis take students far beyond the educational point they reach through a narrow understanding of fundamental principles and concepts of law (which, in practice, may mean little more than an acquaintanceship with a large numbers of legal rules (HEFCE Subject Report 1994b, para 20)).
Whilst the aims for a law degree, suggested by ACLEC, might be applauded by many in university law schools ACLEC's proposed method of supplementing these aims, it's outcome and descriptive approach, seems to raise greater problems. First, the distinction between an outcome and a descriptive approach is likely to be unworkable in practice. An illustrative example of the problem that would ensue if this division is accepted can be seen if one considers that one outcome to be achieved, suggested by ACLEC, is some knowledge of judge-made law; another is knowledge of relevant aspects of the social sciences (ACLEC 1994a, para 4.8). Suppose a university law school were to suggest that they achieved this by a reading of one case, Palsgraf v Long Island Railroad Company (248 NY 339; 162 NE 99(1928)), and associated literature: How would the professions assess whether this was acceptable or not? On it's face the law school's suggestion might seem insupportable. However, Palsgraf has generated a considerable literature in terms of doctrinal commentaries, subsequent usage in other cases, assessment of the influence the personalities and beliefs the judges had on the case and economic analysis (see, for example, Goodhart 1972, p 129; Landes and Posner 1987, pp 246-247; Noonan 1976, ch 4; and Prosser 1953, p 1). The law school might be taking a valid position. In order to assess whether this was so or not the professions would have to call for detailed information about the nature of the syllabus. This a law school would probably resist both on grounds of academic freedom and because of pragmatic considerations about the amount of time and money involved in servicing such a request. Were the information to be provided any subsequent denial of recognition by the professions would probably result in controversy about whether or not the professions could understand the nature of the evidence (this by it's nature being far removed from the kind of material used by practising lawyers). Subject-based prescription, whatever it's other defects, gave a measure of objectivity and ease to the profession's recognition procedure for university law schools. Any attempt simply to assess the achievement of outcomes will always be complex and appear subjective. The twin benefits of speed and objectivity can only be achieved if the outcome approach and the descriptive approach are allied.
An outcomes approach, used in isolation, also raises significant conceptual difficulties in the context of university education. The educational underpinning for ACLEC's notion of outcomes would appear to be the wide-spread notion of assessing "competencies". Jones has noted that
"[i]t could be argued, and often is, that while it is appropriate to specify 'competences' at the vocational stage, it is not appropriate at the undergraduate stage...The emphasis within this phase of legal education is on the acquisition of knowledge and understanding..." (Jones 1994, p 39).
Hyland has described the development of the competence-based strategy in education (Hyland 1993). Competencies he argues are about the measurement of how to do things. However, Hyland argues, knowing how to do something, performance or in ACLEC's terminology demonstration, is not the same thing as having knowledge in itself (Hyland 1993, pp 62-63). He concludes that competence-based approaches
"have a weak and confused conceptual base, are founded on dubious and largely discredited behaviourist principles, and display systematic ambiguity in their treatment of knowledge and understanding. It would be a great pity if such an impoverished conception of the educational endeavour came to influence the work of teachers and students..."
(Hyland 1993, p 66).
The details of both outcomes to be achieved and the descriptions of areas or approaches to study that ACLEC proffers also raise some difficulties for university law schools. Some of these arise out of problems already averted to earlier in this article. Measuring IT skills in students, for example, suggests an infra-structure that not all university law schools would find to be within their financial means. Assessing a student's awareness of the ethical issues raised in the study of law is, in ACLEC's terms, predicated on a belief that a law degree has vocational relevance (even though ACLEC argue that ethics means something more than "professional ethics" (ACLEC 1994a, para 4.14)). Other similar examples could be given. Other problems arise independently of arguments referred to above. Thus, for example, one outcome suggested is an ability to make oral presentations (ACLEC 1994a, para 4.8). In itself this might seem a suggestion to which no objection could be taken. All law schools develop students' oral skills through the students' contributions to seminars and tutorials. However, oral skills are things which are both culture and gender specific. Thomas, for example, has argued that "arguably male students often make an impression because of their...talkativeness" (Thomas 1990, p 94); Addison and Cownie that "[t]here are social and cultural aspects to linguistic skills" (Addison and Cownie 1992, p 471). Although some law schools do currently make attempts to assess such skills as part of their degree the HEFCE subject report suggest that both most new and old universities rely largely on assessment of written work (HEFCE Subject Report 1994b, para 23). To change this, and measure oral skills in an objective fashion, would be extremely difficult given both the gender divide in the law school's student body and it's diverse cultural and national background.
Both outcomes and description need to be approached with a relatively light hand. There has been significant work on the details of the day-to-day work of the legal professions recently (for example, Chambers and Harwood 1990; Johnston and Shapland 1990; Morison and Leith 1992). Notwithstanding this work, the legal professions know relatively little about what they do and, thus, can know very little about what they need in graduates. On thing that is known is that professions, and therefore their needs, are usually fragmented (Twining 1994, pp 169-170). To attempt to be dogmatic about either outcome or prescription would be to overstep the professions' own best interests. Equally, even if the legal professions were clear about what they needed in graduates, the lack of research into legal education means that it is unclear how this might best be delivered. Finally, university law schools will always have to cut their syllabuses not according to a common pattern but according to the respective strengths and weaknesses of their members of staff and taking into account the dictates of the other activities, primarily research, in which they are also engaged. Teaching, after all, is not the most important part of a university law school's work.
The Assessment of Quality
ACLEC's proposals for new systems to assess the performance of university law schools, which include proposals for a new body of assessors, are those parts of the consultation paper which are likely to give rise to some of the greatest hostility when they are examined by university law schools (ACLEC 1994a, paras 5.7-5.11). University law schools are already assessed for quality in a number of different ways. External bodies give each law school a teaching quality rating and a research quality rating. Twinning arrangements, where part of a law degree is taught outside the United Kingdom, are being separately considered. External examiners look at the individual examining procedures for each degree. The university of which the law school is a part will, as a whole, be subject to external assessment. Internally, universities will audit their law school as a whole and are likely to give separate consideration to individual matters such as postgraduate courses. The Committee of Heads of University Law Schools in its draft response to the consultation paper has commented that university law schools are "now in danger of suffering from 'assessment overload'" (Committee of Heads of University Law Schools 1994, para 1.3). Each assessment requires the use of law school resources, primarily academic staff time. The HEFCE teaching visitation, for example, involved a three-day visit to each law school on which a report was compiled during which academic staff were seen and assessed and individual members of staff were questioned on various matters such as admissions policies, library resources etc. Prior to such a visit weeks of staff time would have been spent in preparing documentation for the visit. Whilst the Law Society and the Bar have a responsibility for ensuring that the students they receive are of the quality they expect there is also a need to take account of the fact that extra assessment will inevitably mean that staff take time currently devoted to teaching, research or other matters in order to prepare for that assessment. It is not surprising that the draft response of the Committee of Heads of University Law Schools views the possibility of a new body of assessors "with reservation" (Committee of Heads of University Law Schools 1994, para 1.3).
The resource implications of assessment makes it necessary to consider the possibility of a two- stage assessment procedure which could integrate present assessment procedures with the responsibilities of the Law Society and Bar thus meeting the anxieties that lie behind ACLEC's proposals. Law schools might be asked to provide copies of, for example, their HEFCE teaching assessment (with reports if applicable), their research rating and external examiners reports for the degrees being considered. If these showed no cause for concern, and if the law school certified that it was abiding by the outcomes/descriptions suggested by the Committee, no further assessment need be entered into. This procedure might be formalised. For example, if a law school has an "excellent" teaching rate from HEFCE and certifies that it is abiding by the outcomes/descriptions suggested by ACLEC, it is difficult to conceive of a situation where it would be necessary for professional bodies to separately assess the law school. Similarly if the law school was assessed as "unsatisfactory" by HEFCE it is difficult to see how it could possibly be abiding by the outcomes/ descriptions suggested by ACLEC. Thus, "excellent" might involve automatic recognition of a law degree, "unsatisfactory" an automatic withdrawal of recognition of a law degree. This would leave the professional bodies an element of discretion in deciding which HEFCE-rated "satisfactory" law schools to visit, if any. ACLEC's consultation paper suggests continuing to recognise all "satisfactory" law schools as a transitional arrangement whilst new assessment procedures are being created (ACLEC 1994a, para 5.26). Because of the shortcomings in the HEFCE assessment procedures noted above this would, at present, involve recognising institutions with very limited library resources and would thus run counter to the Committee's stress on the importance of the use of primary materials (ACLEC 1994a, para 6.5). Future assessments of teaching quality will be made by HEFCE on the basis of a graded profile covering six aspects of teaching provision. All assessments will involve a visit to the institution being graded (HEFCE News 1994c, 1,3). These, too, could be integrated into assessments made by the professional bodies.
Conclusion
At the beginning of it's consultation paper ACLEC states that it does not wish to perpetuate the divisions that have developed between the academic and the vocational study of law because these divisions "create the false impression that there is a sharp difference between university study of law and the needs of the practitioner" (ACLEC 1994a, para 1.6). In a very limited sense this proposition about those divides is correct. There is no sharp division between the colours red and orange which lie next to each other in the spectrum. In the same way the needs of a practitioner and university study of law can be very close to each other. As has been argued above the study of law at university should lead a student to be a better educated person and a better educated person is, by virtue of that education, a better practitioner. Equally, the study of law at university leads to increased knowledge about the nature and content of legal rules and the workings of legal processes. This must be of some benefit to legal practitioners. There is, however, a sharp distinction between the colours red and violet which lie at opposite ends on the spectrum. Both the history of university law schools in the United Kingdom and elsewhere, and the contents of ACLEC's consultation paper, demonstrate that the work of university law schools and the needs of practitioners can also be at opposite ends of the spectrum.
Samuelson's observation, made of United States university law schools, that "the same zip code often used to be about all the law school had in common [with the rest of the University]" could, in the past, as easily have been applied to British university law schools or university law schools in other common law jurisdictions (Samuelson 1975, p 258). The Arthurs report on Canadian university law schools noted that "...the claims - the perfectly legitimate claims - of professional training have submerged academic themes and initiative" (Arthurs 1983, p 55). In the United Kingdom Wilson has concluded that "[t]he words ‘English legal scholarship’ though high sounding have a similar function to the words ‘disposable paper cup’. Each adjective strengthens the message that one can not expect much in terms of long term quality or utility from it" (Wilson 1987). University law schools in common law jurisdictions have made little discernible contribution to the intellectual history of the countries in which they are found. (Perhaps the sole writer arguing to the contrary is Taylor who has written that American university law schools are "the dynamic centres of social and political thought on American Campuses (Taylor 1991, pp 114-115).)
The past intellectual failings of British university law schools cannot all be ascribed to a policy of servicing the needs of the legal professions. However, this has played its part. The way in this damage has been done can be amply demonstrated by ACLEC's consultation paper. There is first the question of the finite, and increasingly limited, resources of the law school. Professional bodies, representing as they do commercially-minded practitioners, well understand the desirability of having the professional training of their members funded in part by the state. Thus they seek to incorporate their needs in the work of the university law school and will endorse ACLEC's suggestion that one of the functions of a law degree should be to make vocational training "comparatively short" (ACLEC 1994a, para 2.1). Wealthy though they are by comparison with university law schools, their own financial contribution to such schools has been limited to the small-scale funding available through the City Solicitor's Trust and piece- meal donations made by individual firms which have often been in areas of law perceived to be of benefit to the firm and/or have come with attached conditions relating to consultancy work to be done for the firm by members of the university law school which is the beneficiary of the donation (Bradney 1991, pp 139, 145; Bright and Sunkin 1991, ch 7). As has been noted above ACLEC's proposals, with their inevitable resource implications, come along with a plea for increased funding for university law schools. However, there is little reason to be sanguine about the implementation of ACLEC's ideas being conditional on enlarged financial resources for law schools. Law schools will be expected to vire some of their very limited research funding and scarce staff time into the pursuit of new teaching stratagems. As important as these funding problems is the often jarring change of focus that ACLEC's proposals bring to the law school's work. One example will illustrate this phenomenon. Central to the university law school's work is a concentration on principle and structure rather than ephemeral or anecdotal detail. This focus remains the case whether the law school's work is seen in doctrinal or other terms (Goff 1983; Feldman 1989). An equally important part of the educational process lies in learning the difference between the seeming importance of one's own individual, anecdotal experience and a more measured reflection based upon the sum total of experiences. In it consultation paper ACLEC suggests there should be improved institutional contact between practitioners and academics with practitioners being involved in the law school and academic staff going on secondment to law firms (ACLEC 1994a, para 6.10). The suggestion implies two things. First, that a practitioner can, by virtue of the fact that they are a practitioner, acquire a knowledge of the practice and problems of the law which she or he can synthesise and then turn into something which is more than autobiography. Secondly, that an academic by virtue of a single placement can learn something significant about the nature of law rather than simply the nature of the place to which they are seconded. Both these suggestions run counter to the educational process and seem likely to produce results which are far removed from the focus of the law school's work. (Such literature as there is in favour of such placements adds weight to fears about their worth rather than the reverse (see, for example, Soetendorp 1993)). This is not to deny that conversations with practitioners can spark legitimate academic enquiry or that academics are hampered by an inadequate knowledge of the dynamics of legal practice. The first point does not justify institutional links and the second point is not met by personal contacts. Shifting focus from the horizon to the foreground may well be of benefit to the professions, allowing, at the very least, for a form of "capture" of the placed lecturer. However, it is difficult to see what value it, or other similar reforms, has for the university law school.
An ivory tower is better defended from behind a moat with a raised drawbridge. Negotiation of terms are likely to be more successful if one realises the strengths and weaknesses of one's embattled position. University law schools will need to view ACLEC's consultation paper with suspicion. University law schools are now mature bodies who no longer need to rely on any institution outside the university for guidance as to their mission. "[T]he modern law school...by and large...has been assimilated into the university. As such its commitment is and should be to the academic ethic, that is to the advancement, stimulation and dissemination of learning, broadly conceived..." (Twining 1994, p 192) University law schools have their own project and, when faced with external suggestions about their future (suggestions made for the benefit of others) they have to assess how far those suggestions fit in with that project and how far they conflict. University law schools are a valuable resource that others, both within and outside the university, need. These things are both a source of strength and weakness. If university law schools are aware of their own purposes, and realise their worth and the predatory nature of other bodies, then they will be equipped to treat about their futures. The only institutions that will defend the needs of university law schools are the law schools themselves; they have only themselves to blame if they fail. There is much that is good and valuable in ACLEC's consultation paper; there are some things that are patent nonsense. It is for the law schools to separate the good from the bad.
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