ENGLISH LEGAL TRAINING
| Date | 01 April 1950 |
| Published date | 01 April 1950 |
| Author | L. C. B. Gower |
| DOI | http://doi.org/10.1111/j.1468-2230.1950.tb00161.x |
THE
MODERN
LAW
REVIEW
Volume
13
April
1950
No.
2
ENGLISH LKGAL TRAINING
A
Critical Survey
it
I.
INTRODUCTQRY
THE
subject of legal education is one which has aroused singularly
little interest in England in recent years and the general professional
attitude to
it
is
one
of
complacent apathy.
It
is never thought
worthy of discussion
at
general meetings of the Bar
or
the Law
Society,
no
changes of a fundamental nature have been made in
the last twenty-five years and there is an astonishing paucity
of
published material
on
the topic.' This professional complacency is
in
striking contrast with the position
in
the other common law
jurisdictions, particularly in the U.S.A. and Canada where the
subject
is
perhaps the most widely debated of any legal topic. It
has been discussed at almost every meeting of the American and
Canadian Bar Associations and the best of the law schools are
constantly experimenting with new courses and teaching methods
and attacking each other's ideas
a'
with
a
freedom which is in
refreshing contrast with the back-scratching prevalent in academic
circles here. The published material is embarrassing in its profusion
;
it is quite common
for
a whole issue of
a
law review to
be
devoted
to
it,' and a special Journal of Legal Education is published
*
A
much abbreviated version of thie monograph waa delivered
as
an
Inaugural
Lectnre at the London School of Econornica and Political Science
on
January
24
last, with Lord Justice Denning
in
the Chair. This accounts
for
the fact that
it is written mainly in the 5rat
person
singular and
I
have thought it better
not to alter thia, since.it does not purport
to
be other
than
an
expresaion
of
personal opinion.
I
am great1 indebted to Prof.
A.
D. Gibb.
K.c.,
of Glsegow.
the late
Prof.
Sidney Post dmpson
of
New
York,
Prof. W. Fricdmann
of
hlelbourne, Prof.
J.
L.
Montrose
of
Belfast,
Dean
C.
A.
Wright
of
Toronto,
Mr.
I.
D. Campbell
of
New' Zealand,
Mr.
E.
R.
Dew, Principal
of
the Law
Society's School
of
Law,
Mr.
$.
Street
of
hlnnchester, the Under-Treasurers
of
the
Inna,
the Under-Secretary
of
the Law Society and the Librarian of thc
Institute of Advanced Legal Studies
for
their generous response to my reqiiests
for
information.
I
am
also
indebted to
all
my
collea uee and especially
to
Lord Chorley, the late
Prof.
J.
H.
Laski, Dr.
0.
Kahn%reund,
Mr.
A.
Good-
man,
Mr.
C. Grunfeld, Mr.
8.
de Smith and Mr. D.
H.
N.
Johnson
for
their
invaloable advice ond eriticiams.
1
As
would be expected
The
Journal
01
the
Society
01
Public Teachera
01
Law
generally contains at least one article
on
the aubject, but it is rare to
find
anything
on
it in the L.Q.R.. M.L.R., the Csm.L.J.
or
the wceklics.
2
See,
s.g.,
1
Journal
oj
Legal
Education
(hercinafter citcd
as
J.L.E.),
p.
28.
especially
p.
38
et
req.
&e,
6.g..
43
Co1.L.R.
4W85;
30
Iowa
L.R.
3!2&441;
13
Con.B.R.
347417;
26
C.U.B.R.
117-196.
Vot
18
187
10
188
TEE MODERN
LAW
REVIEW
VOL
13
quarterly, each issue containing at least twice
as
much as any
annual number of our
Journal
of
the Society
of
Public
Teachers
of
Law.
There are also a number of full-length works of which
the three recent publications of the Russell Sage Foundation' are
particularly valuable.
It
has been discussed by a special inter-
university conference of ~tudents,~ and
a
seminar on legal education
is part of the curriculum at Columbia.6 Finally, the American
and Canadian
Bar
Associations, realising that it is useless to try
to
reform legal education unless one really knows what lawyers do,
are at present conducting elaborate surveys of the legal profession
(expected
to
take five years to complete) designed to ascertain the
exact functions which a lawyer now has to fulfil in a democratic
society, whether as judge, government omcial, practising attorney
or
law teacher.'
Meanwhile the English lawyer remains blissfully ignorant of this
ferment working among his colleagues across the Atlantic, rarely
discussing the problem
or
apparently realising that there is
a
problem
to
discuss. The Council of Legal Education, the Law
Society and the Universities periodically make trifling changes
in
thck curricula, and occasionally an academic lawyer, greatly daring,
suggests something a little more radical, such as the introduction
of the study
OF
comparative law. But that there may be anything
fundamentally wrong with
our
present system of legal training is
a point
of
view which scarcely occurs to lawyers, academic or
practising. The present state of training for the Bar has,
it
is
true,
been subjected
to
fairly general criticism, the Solicitors' Final
Exnmination has not escaped abuse and recently Sir Arnold McNair
'
and Professor
E.
C.
S.
Wade have expressed vague disquiet about
university teaching, but for a radical attack on our system as
a
whole we have to turn to the works of those writing as laymen
rather than as lawyers, such as Sir Alexander Carr-Saunders
'*
and the late Professor Harold Laski." Are our American
colleagues making a fuss about nothing,
or
is our system
so
superior
to
theirs
?
Is
our comparative complacency justified?
Law Training in Continental Europe,
by Eric
F.
Schweinberg (New York,
1946),
Lawyers and the Promotion
of
Justice
(New York,
1938)
and
Lawyers,
Law Schools and the Public Seroice
(New York,
1948),
both by Esther Lucile
Brown. See
also
Karl
N.
Llewellgn,
The Bramble Bush
(New York,
1930),
and
Jerome Frank,
Law and the
Modern
Mind
(New York,
1930,
reprinted
Stevens
&
Sons,
London,
1949).
5
For it6 reports
see
1
J.L.E.
p.
64
et
seq.
and p.
221
et seq.
See also the
Report
of
the Inter-Profe~sions Conference on Educition
for
Professional
Responsibility (Carnegic
Press,
1948).
*
Tho bibliography for this courw lists
nearly
100
major American contributione.
7
For
the
latest position regarding these surveys, see
34
A.B.A.J.
16
and
'27
Cai1.B.R.
961.
8
(1934)
J.S.P.T.L.
1.
9
0
Co1n.L.J.
.%G.
10
The
Profcssaona
(with
R.
A.
Wright),
1999.
11
See
especially
Thc American Democracy
(1949),
p.
371
et
rep.
APRIL
1950
ENGLISH
LEGAL
TRAINING
189
Historical Introduction
Before attempting to answer these questions
I
must indicate
how our present system has grown up and exactly what
it
is.
Happily a lengthy historical account is unnecessary because the
present system is little over
100
years old. Until the seventeenth
century there was of course a reasonably thorough system of
education carried out by the Inns of Court and Chancery but by
the early eighteenth century this had ceased and
'
keeping terms
'
no
longer meant attending readings and taking part
in
moots but
merely, as it does today, eating dinners. But because the Inns
had originally been the legal university, and were habitually
so
described in the literature of the sixteenth and seventeenth centuries,
Oxford and Cambridge had never seriously attempted the teaching
of
English law and by this time even the teaching of Roman civil
law was virtually dead.
It
sometimes seems to be assumed that
university law teaching was revived by Blackstone and grew steadily
from
his time onwards, but this impression is false. His Commen-
taries in book form had
a
lasting influence but the example of his
oral lectures was short-lived.
In the early part of the nineteenth centuryla therefore the
position was that neither for the Bar nor for solicitors (by which
expression
I
include attorneys) was there any organised training.
For call to the Bar the
de
jure
qualification consisted
of
the ability
to eat and drink and to sign one's name,
de
facto
it involved,
according to a contemporary description,
'
going into a pleaders'
office for two
or
three years to learn to tell a plain story in very
unintelligible language
'.I3
For a solicitor also the only training
was practical apprenticeship, and in his case without gastronomical
consolations. Such instruction as the student obtained therefore
depended entirely on his own initiative and that of his principal.
There was
no
test of educational proficiency either general
or
legal
and if
he
sought guidance from lectures
or
classes he would be
unlikely to find it.
It
is true that both Oxford and Cambridge
boasted two Chairs
of
Law and gave degrees in Civil Law which
were essential for admission to Doctors' Commons and practice
before the ecclesiastical courts, bat at Oxford the Chair of Civil
Law
was a complete sinecure and the Regius Professor at Cambridge
only delivered an occasional lecture.
No
degrees were given
in
English law and whether its Profcssors did anything depended on
l3
Except where otherwise stated the facts and quotations which follow are taken
from the Reports
or
Evidence
of
the Select Committee of
1846
and Royal
Commission of,
1854,
referred
to
below. See also
Law
Society's
Handbook,
pp.
15-22;
Holdsworth,
H.E.L.,
vol. xii, and Bellot,
Unincrrity
Colleqc.
London, 18261926.
p.
96
ct
se9.
For
the 1atc.r history, fiee
51
L.Q.R.
p.
162:
15
Can.B.R.
151
:
Carr-Saundeta
&
Wright,
op.
cit.
Thc
sneer
hardly does justice to the discipline instilled by the science of special pleading,
which,
deepite its defects, probably had some
merits
which the
prcsent
reading
in
chambers
'
lacks.
'3
Quoted by Joseph Napier,
0.0..
in
Commons Debate, Narch
1,
1854.
To continue reading
Request your trial