The Calling of Law

The Pivotal Role of Vocational Legal Education

Fiona Westwood, Karen Barton, Fiona Westwood, Karen Barton

• Verlag: Routledge
• Jahr: 2016
• ISBN:
  9781317039488
• Auflage: 1
• Thema: Derecho
• Thema: Ética y responsabilidad profesional en el derecho

As one of the 'learned' professions requiring advanced learning and high principles, law enjoys a special standing in society. In return for its status and rank, the legal profession is expected to exhibit the highest levels of honesty, trust and morality, the very values which underpin the legal system itself. This, in turn, entrusts to legal education a particular problem of addressing, not only the substantive elements of the body of law, but a means through which the characteristics of the 'calling' of law are imparted and instilled. At a time when the very essence of the legal profession is under threat, this book calls for a realignment of the legal curriculum and pedagogies so as to emphasise the development of culture over industry; character over eloquence; and calling over skill. Chapters are grouped around the core content and key themes of Curiosity, Calling, Character and Conscientiousness, Contract, and Culture. The volume includes contributions from leading experts, drawn internationally and from other professional disciplines in order to present alternative approaches aimed at tackling common issues, providing insight, and provoking debate.

Part I Curiosity

Introduction

Karen Barton

DOI: 10.4324/9781315614281-1

Curiosity

In Carroll’s Alice in Wonderland, it is curiosity that initially propels the young Alice into a confusing world where she is faced with a loss of confidence and a challenge to her identity as she struggles to find her way in this strange new environment. She is seldom given help or useful advice from the characters she meets and is invariably left to figure out how to solve the puzzles and problems she faces on her own. Her hesitant reply to the Caterpillar’s question concerning her identity: ‘I – I hardly know, sir, just at present – at least I know who I was when I got up this morning, but I think I must have been changed several times since then’, reveals both vulnerability and at the same time a growing sense of her personal self along with the realisation that events had shaped her. As her curiosity leads her on, alice learns from her experiences, the choices she makes and how she perceives the world. She grows. This wonderful depiction of the transition from childhood to adolescence, through periods of doubt, disequilibrium and self-realisation, reflects in many ways the journey from novice to professional. In a world of complex problems, competing demands and general erosion of professional status within society, when doubts and uncertainty abound, the reaffirmation of a ‘calling’ as a higher, core ideal of what it means to be a lawyer provides a sense of personal identity and self-actualisation that helps sustain individuals on their journey towards becoming a trusted, caring, empathetic and valued professional.

Preparation for any profession is a complex process of acquisition of knowledge, skills, experience and habits expressed as codes and values. As one of the ‘learned’ professions requiring advanced learning and high principles, law enjoys a special standing in society. In return for its status and rank, the legal profession is expected to exhibit the highest levels of honesty, trust and morality, the very values which underpin the legal system itself. In particular, the moral obligation placed upon lawyers to defend justice imposes upon them a reciprocal responsibility, which above all is based on upholding these values. This, in turn, entrusts to legal education a particular problem of addressing not only the substantive elements of the body of law, but a means through which the characteristics of the calling of law are imparted and instilled. As increased consumerism and regulation threatens the justification of its social contract and imposes external pressure on individual lawyers to exercise moral courage, there is a need to prepare the new generation of lawyers for these challenges by instilling in them qualities such as resilience, character, empathy and curiosity, traditionally honed through culture, constructive feedback, learning and practice. As a result, legal education plays a pivotal role in providing practical and active support to ensure the future viability of the legal profession.

The publication of this book is timely, coming at a time of disruptive change for the legal profession. With roots which can be traced back to the Clementi Report published in 2004, the Legal Services Acts in England (2007) and Scotland (2010) have introduced fundamental reform to the provision of legal services, the effects of which are still to be realised fully. Most recently the Legal Education and Training Review in England (LETR 2013) considered a range of environmental factors which will shape not only the sector but its education and training.

At a time when the very essence of the legal profession is under threat, this book calls for a realignment of the legal curriculum and pedagogies so as to emphasise the development of culture over industry, character over persuasion and calling over skill. In the context of the challenges outlined above and, as a result, we aim to provide an international resource for educationalists and other scholars, educators, practitioners, policymakers, technologists and students. Where Sullivan et al.’s Educating Lawyers – Preparation for the Profession of Law (2007) broke new ground in its advocacy of a new paradigm for improving the professional education of lawyers, this book aims to pick up this challenge and take it to the next stage of its realisation. Maharg (Transforming Legal Education, 2007) talks about four areas where the transformation of legal education might be rooted: experience, ethics, technology and collaboration. In each of these areas he uses words such as ‘morals’, ‘creativity’, ‘culture’ and ‘collaboration’ to describe the qualities that might emerge through this transformation. Adopting this approach, the chapters in this volume are grouped around the core content and four key themes of Curiosity, Calling, Character and Conscientiousness, Contract and Culture.

The book brings an international and cross-disciplinary perspective to the challenges ahead and presents alternative approaches aimed at tackling common issues, providing insight, and provoking debate. The proposals and solutions offered by the authors are rich in their variety and yet find common ground in the fundamental tenet of curriculum development and assessment, particularly in relation to the complexities of embedding ethics and ethical practice, professionalism and professional character. The legal jurisdictions represented in this volume, from the USA, to Canada, the United Kingdom, Hong Kong and Australia, face the same demands to address the globalisation and segmentation of the law. At the same time law schools are tasked with the responsibility of producing students who are ‘ready to practice’ while inculcating that sense of calling to their chosen profession. And so while individual chapters may emphasise a particular focus around one of the key themes as a response to these demands, there is a common thread running through which advocates instilling a commitment to the calling of law alongside a nurturing of the natural curiosity within as the bedrock of professionalism. The book, therefore, poses key questions about the purpose of vocational education and challenges readers to question current conventions and models with a view to transforming the system from within. In this respect it asks us to stimulate our own curiosity about what is possible and to imagine how that vision might be realized.

Structure and Outline of the Book

Calling

The book is arranged into Parts representing the key themes. In Part II we are asked to consider this notion of the ‘Calling’ of law and question to what extent it can survive in a climate of unprecedented change and reform. At the macro level, the forces to reduce the provision of legal services to a segmented and market-driven commodity appear overwhelming against a profession which is seriously under threat. John Flood and Fiona Westwood, in these opening chapters, set the scene for battle both eloquently and comprehensively.

John Flood’s detailed review of the factors driving change in the provision of legal services globally and his comprehensive description of the resulting challenges for legal education in the face of such unprecedented and radical change is fascinating. Inevitably a chapter of this scope must be presented in context, but rather than focussing on its history, he concentrates instead on the changing nature of legal education in response to the challenges it faces across several key jurisdictions. His conclusion is that we are witnessing the Americanisation of legal education on a global scale and, while not necessarily advocating that particular route for the UK, he does urge us to take account of globalization and the role that professions play in society when reshaping legal education in order to maintain the reputation of the UK legal profession as a whole.

Fiona Westwood calls for vocational legal education to be re-established as a driver for change and force for ‘self-actualisation’. Westwood’s understanding of the current climate and the pressures driving change within the legal profession is perceptive. She presents the wide-ranging challenges the profession faces, and contends that vocational legal education’s role is pivotal in maintaining the concept of a calling to the law; is crucial to the re-establishment of the social contract between the public and lawyers based on mutual respect and trust; and consequently enhances the protection of the profession’s identity and role within society.

Character and Conscientiousness

In Part III, the notion of a calling is distilled into the concepts of ‘Character’ and ‘Conscientiousness’. The chapters presented here are clearly rooted in the obligation placed on lawyers to provide the bedrock of a liberal, democratic society. For each of these authors the protection of access to justice for all and a moral duty to uphold the rights of individuals precedes all other considerations, and it is through development of conscientiousness and moral character that the public interest is served and professional identity formed.

Donald Nicholson presents an altru-ethical conception of professionalism which manifests itself as ‘an obligation to contribute in some way to justice’ and then goes on to suggest how legal education might instil a commitment to this ideal. Clearly Nicholson’s intriguing definition strikes at the heart of the idea of a calling with its emphasis on professionalism grounded on ethics which in turn is grounded on altruism. He argues that these attributes are best developed in a culture which nurtures them and this, he contends, is not the culture which is prevalent in most law schools at present. He proposes instead a ‘cradle to grave’ Clinical Bachelor of Laws degree model as providing the foundation and ethos through which moral character, conscientiousness, ethics and altruism can be inculcated and provides a convincing argument to support his assertions.

Richard Devlin and Jocelyn Downie document the growing discontent with and criticism of the Canadian legal profession. They attribute this to a combination of factors including the failure to ensure access to justice; a general decline in professionalism and civility between lawyers; inadequate preparation of law students for practice; and the consequent erosion of public trust. Their proposition that ‘Public Interest Vocationalism’ might provide the means to respond to these issues is compelling not least in attempting to realign the aspirational aspects of a vocation or calling with the technical skills and competencies associated with the legal profession. Importantly, if taken to its logical conclusion, Public interest Vocationalism facilitates a revision of the dominant models in the legal education system and serves as the catalyst for change. Devlin and Downie present some interesting examples of what this change might look like based on their own experiences as law teachers.

Contract

Part IV looks beyond the legal profession for insight into how the medical profession and medical education have dealt with the issues of self-perception and external relationships. Here the changing nature of a profession’s ‘Contract’ with society is explored and how this, in turn, is altering the traditional notions of professionalism and, importantly, the professions’ responses to this.

Sylvia and Richard Cruess focus on the concept of professional identity and the nature of the social contract within which professionals must function. They highlight the growing dichotomy between altruism and self-interest driven in large part by the changing nature of this contract; and argue that one way to resolve this is to develop a cognitive base of professionalism, based on a transformative process of acquiring personal identity, and to integrate this throughout the curriculum. They advocate ten general principles for achieving this, emphasising the importance of identity, role models and socialization, and which serve as a useful and welcome comparator for legal education.

Sam Leinster provides an interesting synopsis on the place and value of ethics and professionalism in medical education over time; the challenge to complacency that the profession faced in recent times; and how medical education responded to that challenge. The introduction of ‘Fitness to Practice’ processes in all UK medical schools, while not universally welcomed initially, is now generally accepted as an essential part of medical education and, he notes, is a good example of positive cultural change aimed at improving professional behaviour and re-establishing trust in the profession.

Culture

Part V is devoted to the theme of ‘Culture’ and brings further international perspective to the volume.

The first of two chapters from the Australian National University examine the challenges of facilitating common understandings and creating a collaborative culture in online communities of learners. Craig Collins and Suzanne Webbey focus on the relationship between legal culture and legal education and the historical tendency to favour individualistic approaches to learning how to be a lawyer over collaborative ones. They place Professional Legal Education at the focus of efforts directed towards reorientating and transforming engagement with the law among students, and describe recent innovations in their Graduate Diploma of Legal Practice programme aimed at doing just this. A model of simulated learning in ‘virtual law firms’ has been adapted to an entirely distance-learning approach and through this development they demonstrate how group work has been central to the effectiveness of the programme and argue that it is crucial in inculcating the language, customs, ethics and culture of the legal profession.

Simulation of a different sort, set within a different culture, is the focus of Wilson Chow and Michael Ng’s chapter. Inspired by earlier work in the use of Standardised Clients in UK, USA and Australian law schools, Wilson and Ng describe how the approach was transferred to the Hong Kong jurisdiction and the challenges this posed. Their detailed account of the approach to selecting and training standardized clients provides evidence of how innovative approaches to legal education can cross cultures, institutions and professional backgrounds successfully, with some important insights on how this can be achieved. Like others, the issue of how communicative competence can be more authentically taught and assessed within the professional legal education curriculum has exercised their minds and the experience of adopting a methodology, which has been tried and tested in other cultural settings, has brought into focus the fact that ‘it remains a highly contextualized discourse that is inevitably shaped by cultural and jurisdictional particularities’. This along with the challenges of language and institutional situations lead them to conclude that localised and indigenised schemes which effectively de-standardise some of the tools and processes is the way to spread the adoption of this approach globally.

Margie Rowe and Moira Murray discuss how they have integrated the teaching of concepts, practical skills and professionalism in their legal training programme at the Australian National University. They explore the challenges faced in teaching professionalism and communicating professional values in an online environment. By integrating online simulation with reality, structuring formative and summative assessment and identifying and dealing with individuals who negatively affect the learning of others they describe how they have dealt with the challenges of enabling distance-learning students to make the transition into practice. While technology can facilitate this transition, they also stress the importance of involving skilled practice mentors who are also working practitioners into this approach in a master-apprenticeship model.

Finally, John Garvey and Anne Zinkin’s chapter present us with a vision of vocational legal education in the USA and a viable alternative to the State Bar exam. In the Daniel Webster Scholar Honors Program at University of New Hampshire Law School, students are immersed in a two-year programme of practice-based, client-oriented education aimed at producing what they term ‘client-ready’ lawyers who, on successful completion, are certified as having passed the New Hampshire bar exam. While this concession in itself represents a significant change in culture for the legal profession in New Hampshire, the programme also provides a platform for reforming the culture of legal education as a whole. Garvey and Zinkin describe their programme in depth and spare no details in describing the challenges they f...