Re-thinking Legal Education under the Civil and Common Law

A Road Map for Constructive Change

Richard Grimes

• Publisher: Taylor & Francis
• Year: 2017
• eBook ISBN: 9781351814584
• Edition: 1
• Topic: Education
• Subtopic: Education General

Whilst educational theory has developed significantly in recent years, much of the law curriculum remains content-driven and delivered traditionally, predominantly through lecture format. Students are, in the main, treated as empty vessels to be filled by the eminent academics of the day. Re-thinking Legal Education under the Common and Civil Law draws on the experience of teachers, practitioners and students across the world who are committed to developing a more effective learning process.

Little attention has, historically, been paid to the importance of the application of theory, the role of reflective learning, the understanding and acquisition of lawyering skills and the development of professional responsibility and wider ethical values. With contributions from across the global north and south, this book examines the history of educating our lawyers, the influences and constraints that may shape the curriculum, the means of delivering it and the models that could be used to tackle current shortcomings. The whole is intended to represent what might be desirable and possible if we are to produce lawyers that are fit for purpose in the 21st century, be that in either in civil or common law jurisdictions.

This book will be of direct assistance to those who wish to understand the theory and practice of legal pedagogy in an experiential context. It will be essential reading for academics, researchers and teachers in the fields of law and education, particularly those concerned with curriculum design and developing interactive teaching methods. It is likely to be of interest to law students too – particularly those who value a more direct engagement in their learning.

Part C

Countries and cases

Examples of re-thinking

Introduction

The final section of the book is a collection of case studies that sets out ideas and models for re-imagining (or actually realising) a new and improved legal education approach and structure.

The contributions are many and varied in terms of both identified challenges and concrete examples of what could or, in fact, does work.

The recent emergence and rapid growth of legal clinics in Spain (and indeed the rest of continental Europe) is picked up in Chapter 8 by Jose García-Añón, Pilar Fernandez and Ruth Mestre. Developments in this part of Western Europe have been both impressive in nature and extent but, as importantly, indicate what is needed for longer-term sustainability.

In Chapter 9 the situation in 3 jurisdictions of Central and Eastern Europe is examined by, respectively, Michal Urban (Czech Republic), Luba Krasnitskaya (Belarus) and Katarzyna Kowalska (Poland), all of whom comment on the influence of the former Soviet Union and membership of the European Union and how this is being reflected in developments in law schools of the region. Whilst the description of situations on the ground is necessarily brief, the material is rich in both analysis and ideas.

Chapter 10 crosses the North Atlantic, where Sue Prince looks at legal education in Canada, a country influenced by both the civil and common law traditions and by its former and current influences – the UK and the USA – with some interesting results in terms of actual and proposed reforms to legal education.

Moving down the continent in Chapter 11, Juan Beca gives a fascinating insight into legal education in Chile. The turbulent and often-violent history of that country, especially during periods of dictatorship have, perhaps surprisingly, produced innovative legal education models – ones that have survived and even thrived despite other pressures. Clinics for example can be dated back to a period in the mid twentieth century – long before such developments in much of the rest of the world.

Chapter 12 travels to sub-Saharan Africa. In charting recent changes to Nigerian legal education, Ernest Ojukwu looks at how the entire curriculum for the vocational stage of legal education in that country has been reviewed and changed with much beneficial effect. A key component of the new programme is simulated and live-client experiential learning.

Such is the gap between rich and poor in many parts of the world that law school–based clinics are an important and indeed vital service for those with unmet legal need. Shuvro Prosun Sarker looks at the situation in India in Chapter 13 and calls loudly and clearly for legal education reform despite some recent developments aimed at achieving that. Once again competing interests appear to get in the way of constructive change. His conclusions centre on the need for greater discourse between the regulators and law schools in order to meet the needs of law students and the wider society.

Chapter 14 goes to Australia, where there has been a long-standing and well-developed clinical presence but also notable challenges in terms of teaching and learning the law. Jeff Giddings recounts the problems facing legal education in his country and makes credible and important recommendations for improvement – building on many of the excellent experiential programmes already in existence in that country. His analysis of the present and immediate future for legal educators will ring true with many.

The final chapter is devoted to concrete examples of how to teach experientially. First, David McQuoid-Mason provides a valuable and clear example of experiential learning through a rendition of how mock trials can be organised and run. Although much of his work has been based in South Africa, David also has extensive experience of legal education and access to justice reforms elsewhere, and this part-chapter concludes with a mock trial that can be (and has been) used across the civil and common law. The second part takes us back to the innovative law school mentioned in Chapter 4. Here, Katarzyna Gromek-Broc, an experienced academic educated in the civil law tradition but now working at the University of York, UK, significantly, in the civil and common law context, takes the subject of European Law and demonstrates how this subject, can be taught experientially. Through an actual example of learning and teaching concepts and doctrine, the author shows how and why such an approach to study could be suitable in law schools found in either system – very much returning to the arguments set out at the beginning of this volume (particularly in Part A, Chapter 3).

The book then concludes with brief final words.

Chapter 8

The birth, growth and reproduction of clinical legal education in Spain

Pilar Fernández-Artiach, José García-Añón and Ruth M. Mestre i Mestre

8.1 Clinical legal education as a transformative tool

As a starting point, in our view, clinical legal education (CLE) is more than a teaching methodology. It is also a place, physical and psychological, for active learning, in which the opportunity for law students to learn from experience is designed, presented and analysed, in a real or realistic context. Students are expected to take responsibility for the outcomes of their learning through a process of reflection.

CLE is also an important tool for the transformation of legal education, from three perspectives. First, it calls for innovative teaching methods; second, it can serve the university’s mission in working within and for society, beyond simply their role in teaching and research; and third, it can promote access to justice and human rights.

Considering the first aspect, CLE challenges tradition through the integration of theory and practice, by combining a formal education with the introduction to a professional environment in which knowledge, skills and ethics can be studied holistically. This can be done with exercises that simulate real life and/or with real clients with unmet legal needs.

Legal clinics are also the place where students can learn about the local community and its legal needs, about how the law and lawyers can (or should?) tackle these needs and how can they research, manipulate and articulate the legal content in addressing those needs.

CLE is a tool to show students that the law can be used in many ways and they (under supervision and in the context of clients’ wishes) have to decide what needs to be done. Students soon come to realise the extent of protection the legal system might present to its citizens and that this depends, to a large extent, on the use lawyers make of the relevant rules and procedures.

8.2 Legal education in Spanish public universities

Although our analysis refers to public universities in Spain, we think it can be applicable in other contexts. B. De Sousa Santos has identified a triple crisis facing the universities: hegemonic, legitimatic and institutional.¹ That universities are no longer the only higher education educators is the result of a contradiction between what had been considered for centuries the role of universities in the civil law world and the new order in which there are many private education providers and where a free market predominates. While universities are still responsible for the production of critical thinking and technical knowledge, their traditional role was (and some might say still is) in educating an elite. The university’s role has been undermined, leading to a crisis in legitimacy because society has, until relatively recently, prized (if not fully appreciated) the university’s role. The reality is, in legal education and elsewhere, that instead of high-quality, discerning provision the academy has seen rampant discrimination (especially against women and minority groups), overbooked classrooms and low expectations and realisations of student performance. The university therefore can be said to lack legitimacy.

The institutional crisis refers to the fact that the autonomy of universities is now subject to growing requirements of competency, effectiveness and productivity, and market criteria like employability. Although it is true that law schools need to “produce” good technicians, this is problematic because “giving legal education a mere technical aspect responds to an authoritative design in which law faculties become professional schools without providing the element of critique to positive law.”² As Santos points out, universities diverge from other centres of education because they are meant to be critical in their approach and not professional or technical as such.³ In Spain, and elsewhere we suspect, public universities face this crisis, and we suggest that law clinics provide an intelligent way of addressing the problem – and perhaps even a way out.

More profoundly, if, as a public institution, the university is to engage with the development of democracy under the rule of law, to combat discrimination and defend pluralism in our ever-complex and diverse world, law schools surely have an important role to play. When it comes to law, and its procedures and processes, the legal clinic is a vehicle through which conflicts, expectations and needs can be highlighted. CLE is one of the ways in which public law schools can deliver knowledge to society and help produce valid responses and strategies for the better protection of the country’s citizens. For us, this constitutes a solid framework to re-thinking of the kind of education that is needed for our future lawyers.

Of course, as seen at various points in this volume, many academics appear trapped, by chance or design (or inertia) in the old ways of the university and the production of ‘valid’ knowledge: the law is a particular animal of this species – produced by recognised and accepted authority, be it legislation or adjudication, with no other legal reality to check or discuss about-no valid knowledge beyond doctrine. The rhetoric continues: how can lay people understand high theory? How can they pretend to know what is best for them or what legal strategy is correct? But if our objective were to create non-critical technicians who know the norms but ignore the rest, what role is there for the law teacher? Because that is not our objective, we had better re-think what and how we teach law and clinical legal education is one methodology that can help us.

Here are some initial guiding thoughts:

• We are preparing lawyers that will, in a very short period of time, be responsible for administering the law. We are not preparing possible jurists for some task in the distant future in some possible world but actual legal operators in a particular legal culture and context.⁴ Today that particular legal context is a dynamic, complex one which faces challenges and changes with previous practices, technologies and markets – from basic human rights through to high commerce and finance.
• As Ferrajoli points out, the jurist needs to be critical of law because the knowledge of ‘valid’ law can no longer can be separated from the knowledge of law as fact, both in its source and application.⁵ So, the jurists we need are critical ones who can uphold and protect the concepts and institutions enshrined by the law in its widest sense. Nothing less will do.
• It is not new to say that law is the product of the activity of legal practitioners, be they in the law office, in parliament or in the courts, so it is important to determine the learning process of these people who will be deciding what the law actually is and how it should be applied. It is not new either to say that the law is the exclusive preserve of what legal operators do. Arnaud considers that, when educating lawyers, we should take into account not just the law, i...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Foreword
• Opening thoughts
• Contributors
• Part A Context and concepts
• Part B Content and careers
• Part C Countries and cases: examples of re-thinking
• Final words
• Index