The Critical Lawyers' Handbook Volume 1
2: Critical Legal Education
education in Britain is on the verge of profound changes. This essay sets
out to explore the intellectual and political context of the reform of
legal education and of the issues which a project of radical reform needs
to confront and resolve. 1
is a widespread dissatisfaction with the expository tradition and the
inordinate amount of time that we require our students to spend 'learning
the law' in a context in which there is an apparently unending expansion
of rules of substantive law. The volume of learning is such as to inhibit
the possibility of students being able to stand back and consider even
the general course of development of legal doctrine, let alone to grapple
with questions about the relations between doctrine and policy, between
principles and rules, and the relationship between law and the political,
economic and social development of contemporary society.
The post-war development of legal education has witnessed a number of 'partial critiques' of the expository tradition. I describe them as partial because, while their inspiration is dissatisfaction with the existing state of legal education, they all, to a greater or lesser extent, accept or work within the parameters laid down by the expository tradition. The topography of contemporary legal education consists of a substratum of the expository tradition overlaid with a variety of more recent features that are incorporated in a wide variety of forms, hence the increasingly pluralistic course structures and curriculums. The main partial critiques are as follows.
(a) Legal Methods
focus on legal methods is to provide a general framework which can underpin
substantive law teaching. It has been strongly oriented to the acquisition
of student skills in the handling of legal materials. Its most immediate
impact has been to seek to replace the traditional English Legal System
course with its strongly institutional focus and very formalistic treatment
of precedent and statutory interpretation. The most important exemplification
of this alternative 'methods' model has been provided by Twining &
(b) Expansion of the Syllabus
typical undergraduate curriculum has expanded significantly over the past
decades. In part this was a response to a real increase in the volume
of law (for example, growth of administrative law, consumer law, etc.).
In part it is a reflex of changing patterns of legal practice (for example,
the rise of family law as matrimonial issues grew in importance for practice).
This expansion of subjects in the law curriculum has been a counter-balance
to the dominance of rich man's law in the traditional curriculum, and
is manifest in the rise of labour, welfare and housing law.
(c) Sociolegal Trend
the mid-1960s onwards, there was a noticeable growth of sociolegal material
into most but by no means all law degrees. The general form of these developments
was to add, usually as options, subjects variously labelled as Sociology
of Law, Law and Society etc. The aim was to focus on law in action and
to criticise the expository approach for ignoring both the constituting
influences on the form and content of law, and the impact or consequences
of law. Such courses usually espoused an input-output model. The input
of social, political and economic causation was manifested in the popularity
of emergence studies of statute law. The output focused upon an action
model of law conceived as a process with a number of key decision stages.
The other feature of the trend was its introduction of theories normally
excluded from the official corpus of jurisprudence. Max Weber and Karl
Marx began appearing in reading lists for the first time.2
(d) Law in Context
most distinctive impact upon the approach to the teaching of substantive
law has come from a trend epitomised by the Law in Context series published
by Weidenfeld and Nicolson. Its significance is that, unlike the sociolegal
trend, it did not abandon the arena of legal doctrine. Indeed, its primary
expression has been in the production of alternative texts in many, but
still not all, substantive law fields.
(e) Clinical Legal Studies
expository tradition, while purporting to provide an academic foundation
for lawyering, remains inside the realm of the law library, immunised
from real clients. The clinical legal studies movement seeks to take seriously
the vocational aspirations of law students by providing 'real' experience.
It seeks to highlight the issues and skills in the advice-litigation complex
that do not feature in expository legal education. At its best the clinical
approach facilitates the consideration of alternatives to litigation rather
than assuming litigation to be the natural result of legal problems.
order to respond to the critique of the expository tradition and the limitations
of the currently available partial critiques it is necessary to argue
the case for a fundamental restructuring of legal education. I would term
this project critical legal education. My proposals are self consciously
maximalistic; they seek to present a coherent alternative to the existing
model. I do not suggest that the old model can be scrapped and the alternative
introduced fully formed. In practice the process of change will be one
of reform rather than revolution, but if the reform process is to have
any direction it is necessary to specify what its goals are. To this end
I focus on these goals, considering the means of realising them only illustratively
and in so far as is necessary to amplify and justify them.
It should be based on the method of critique which takes seriously the founding assumptions of legalism (which are presumed in legal studies)but does not treat them as eternal verities. Although there is considerable room for discussion about the constituent assumptions of legalism, I would suggest (for the purpose of illustration) the following: a unitary 'legal system'; the formal separation of state and law; and the 'centrality of law'. The focus should be on the problematic nature of these notions and their relationship to the wider society.
(b) Theoretically Grounded Legal Education
legal education is a theoretical but is pervaded by a powerful implicit
theory; for present purposes I suggest that it lies somewhere between
Austinian imperative and the Hartian model of rules. An alternative framework
would start from the position that law, as a
(c) Historically Grounded Legal Education
The great disservice done by medievalist legal history is to have brought about the eradication of history in any form from the typical law curriculum. History must be seen as having a central place in the law curriculum, not as a self-contained strand, but integrated within the teaching of substantive law. This requires a major shift in what is understood by legal history; most immediately, a shift from medievalism to modern legal history. But it also requires a shift from the preoccupation with the internal development of legal doctrine towards a socioeconomic orientation.
(d) Legal Doctrine and Legal Skills
Critical legal education must be centrally concerned with legal doctrine. It should not commit the errors of most sociolegal studies (indicated above), and the selective approach to syllabus planning should facilitate a much stronger skills orientation to original legal materials (which the current expansion of syllabuses does not). Such an orientation will not be without its problems. The tendency should not be to assume a model of a single set of lawyering skills (associated with the assumption of a single form of legal reasoning) but to expand the range of materials handled by students, beyond statutes and law reports, and to introduce them to the variety of forms of legal reasoning (for example, the interaction between reasoning from analogy, by deduction, from policy, principle or moralism etc.).
(e) Beyond the Little Boxes
expansion of the typical law curriculum produces a highly fragmented student
experience of encounters with compartmentalised bodies of rules, unified
by some, usually unspecified, process and Presented as constituents of
an integrated totality, the Law.
my view such a critical legal education would better serve the vocational
aspirations of law students by providing them with more relevant skills
within an intellectual framework which emphasises the contingent character
of legal practices and processes, and highlights their changing relations
with other mechanisms of social ordering and regulation. By carefully
restricting the sheer weight of the contemporary curriculum it would offer,
not only the scope for more selfconscious intellectual development, but
also an emphasis on methods which will produce students better able to
handle in a self-assured and critical fashion the widening range of occupational
openings available to them .