Study and practice
- Key People:
- Ellen Spencer Mussey
- Related Topics:
- law
- jurisprudentes
- Referendar
- licence-en-droit
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To some extent, legal education is out of harmony with legal practice, for in real life a case is not presented as neatly by a client to his lawyer as it is in a textbook. The case usually begins as a statement, often jumbled, of facts and problems that cut across pedagogical categories. A story of a road accident, for example, may involve the lawyer in considering questions of the civil responsibility for the cause of the accident; of contract (in relation to insurance); of criminal law (in relation to a traffic offense); and of other branches of law as well. It is therefore important, while making divisions of law for convenience of study and examination, to guard students against the danger of thinking in compartments.
Lawyers also must contend in practice with branches of law in which they have received no formal education. More importantly, new social issues requiring legal attention and new legal structures come into existence during every lawyer’s lifetime in all societies, particularly in those undergoing rapid economic or political development. A good law school produces a graduate who is not constricted by pedagogy but is trained to adapt to—and perhaps even to help bring about—changes in the law.
The curriculum of the law school also must allow for the great diversity of careers followed by those who have been trained in the law. In many countries large numbers of persons with legal training seek careers outside the legal profession, commonly in civil service, commerce and industry, and education. In many countries it is common for law schools to prescribe a certain number of compulsory subjects, which are regarded as essential to any law student’s education, and to allow the student to select other subjects as well, stipulating only the number of courses to be studied.
The extent to which legal education aims to teach practice and procedure varies from place to place. Attention is always given to the methods of ascertaining the law from the books but not always to the ways of using this knowledge in various roles, such as legal adviser or judge. Discussion of these matters tends to be more widespread in countries where the main qualification to practice law is a university degree—as in the United States—than it is in countries where law-school graduates undergo further professional training—as in England, some parts of continental Europe, Japan, and Korea. Since the 1970s, clinical programs, which provide students with real or simulated experience in law practice, have become a staple part of the American law-school curriculum. On the Continent such training would typically be part of a postgraduate apprenticeship program—as in Switzerland, where graduates spend one or two years in practical work under the supervision of a judge or a lawyer.
Courses on the rules and principles of court procedure are usually compulsory in university law schools. In England, however, few universities teach these subjects, leaving them to the bar and to solicitor’s examinations, though the law of evidence (governing what facts may be proved in court and how) is usually an optional subject; some knowledge of civil and criminal procedure may, of course, be picked up incidentally during the study of substantive law.
Teaching and scholarship
Teaching
Methods of legal education are constantly changing, but the requirement of a university degree has become more or less uniform, coupled in many countries with the need to pass a qualifying examination organized by the profession. Apprenticeship, once a usual way of entering the profession in common-law countries, has everywhere been increasingly displaced by university education, to which it has now become a supplement.
University law schools tend to differ along national lines in their methods of teaching. In the United States, following the work of Christopher Columbus Langdell at Harvard in the latter half of the 19th century, the prevailing technique came to be the case method, in which the student reads reported cases and other materials collected in a casebook, and the class answers questions about them instead of listening to a lecture by the teacher. The case method has been adopted at some institutions in England and other common-law countries but has yet to find broad adherence elsewhere. Even in the United States most law schools now use seminars and lectures as well. The case method has the advantage of emphasizing the characteristic feature of the common law—the evolution of principles from decisions in actual cases—and thus of focusing the student’s attention on the processes of analogy and distinction. It has the disadvantages of, first, being relatively time-consuming in relation to the amount of knowledge of legal principle that can be imparted and, second, concentrating on a source of law that has become just one of many in modern statutory and regulatory legal systems. The traditional teaching techniques in English universities have been lectures and tutorials (or seminars).
In continental European countries the backbone of legal education is the formal lecture. Class sizes are typically very large compared with those in the United States and England. Attendance is frequently voluntary, and those who stay away are usually able to secure the text of what they have missed. Seminars are given too, particularly for specialized subjects. Similar methods are used in other countries with large numbers of law students. In Russia, as in western Europe, the lecture method supplemented by smaller discussion groups is typical.
Teaching methods are not unrelated to the nature of the legal system. The methodology of Continental legal education has grown out of and perpetuates a legal tradition heavily influenced by scholars, while the methods in England and the United States have emerged from and contribute to the maintenance of the tradition of judge-made law. Methods were influenced also by the fact that in England legal education was from early times in the hands of the bar, while on the Continent from the 12th century on it was the province of the universities. The fact that in common-law systems principles of law are largely derived by a process of inductive reasoning from many decisions of higher courts lay behind the development of the case method. In continental Europe the fact that law is found mainly in systematic legislation is one of the chief reasons for the lecture method, in which the subject can be approached through its philosophical background. A desire to expound systematically a body of principles is met better by formal lectures and textbooks than by class discussion. This formal approach is reinforced in countries where published reports of local court decisions are scanty.