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Judge queries specialist legal education

Judge queries specialist legal education

A judge of the Supreme Court has called for a rethink on the need for specialised legal education.

Justice James Edelman of the Supreme Court of Western Australia has called for a rethink on the need for specialised legal education.

Speaking to the Council of Australian Law Deans last week at the University of Western Australia, the judge, who became the youngest person ever to be appointed a judge of that courting 2011, said specialist knowledge is becoming less important.

The young judge said the first aim of a law degree should be to teach students how to think.

"The goal ought to be to teach students to think about how the law operates and how its constituent parts tie together," Justice Edelman said.  

He quotes Professor Tony Thomas, who once said that a university which abandons this primary goal has betrayed its commitment to learning.  

The judge argues specialised legal education is a means to an end, rather than as a end in itself.

"The provision of specialised knowledge ought to have as its focus the illustration of the broad principles and rules by which the law operates.  Or, to borrow from a recent expression of several judges of the High Court in a different context, how broad principles and rules serve a 'taxonomical function' which assist in understanding the relationship between various categories of case," he said.

Justice Edelman said there was once a time before the very recent rise of the modern law  school, when it was thought that the best understanding of the law was by an "alphabetical taxonomy".

He labelled thrice Lord Chancellor of England, Hardinge Stanley Gifford, with a "very unfortunate legacy", "Halsbury's Laws of England".

"It taxonomises the law in precisely this manner. The first six entries in Halsbury's Laws of England are 'Agency, Agricultural Land, Agricultural production and Marketing, Air Law,

Animals, and Arbitration'. There is a very good reason why law schools do not teach a unit in 'Agency, agriculture, air law, animals and arbitration'.

"One consequence of this manner of thinking in England is that it is possible for a person to obtain a qualification to practise law by a one year legal education. Institutes of legal learning hold out a person as having been legally educated in a single year. The University of Oxford assists in such courses which the late Peter Birks once described as 'a laughing-stock in Europe'," Justice Edelman said in his speech.

The judge emphasised he is not suggesting that law schools could ever abolish the teaching of specialised knowledge, which he said is essential to the instruction in legal technique. 

Some specialised knowledge a law school must impart as part of the process of preparing a person for the practice of law. 

"But it should not be taken for granted that all of those subjects are essential," he said.

"Against this thesis is an argument that law schools exist to prepare students for legal practice.  Even if we put aside the significant numbers of law graduates who do not go on to legal practice, there is the impossible issue that specialised legal knowledge is becoming increasingly diverse. There are many specialised areas of the law which assume great significance in legal practice today. Very few of these are compulsory subjects:  competition law, public and private international law, intellectual property, family law, human rights law, environmental law are just a few examples," he said.      

Justice Edelman said law schools should not fear the increasing specialisation of law.

"A good practitioner, and especially one who understands the way that the law operates, should always be able to develop an understanding of these areas of law without university instruction.  In fact, at the very elite level it might be that no specialised legal instruction is required at all."

The judge pointed to the accessibility of specialised information and information technology as another reason specialised legal knowledge is less important in legal teaching.

"Online information is becoming rapidly more accessible in a clearly structured and defined way.  Some universities will make a subject syllabus freely available online.  There are now hundreds of online legal discussion groups and blogs," he said.

"I am a member of discussion groups and blogs on constitutional law, the law of obligations, torts, restitution, and legal theory. On average I receive 20-30 emails and postings from these sources a day. This is not information about which it should be the primary function of a university law school to provide."

He asked his audience as well to consider the counterfactual. If the role of law schools were to provide

specialised legal knowledge then today, he said, in many areas the online resources would rapidly eclipse the university in terms of value added by the provision of specialised knowledge. 

The judge also referred to the increased recognition of continuing legal education.

"When a lawyer moves into a specialised area of legal practice, he or she will often be surrounded by others working in that field. Law firms run regular seminars within these groups. Law Societies, law schools and

specialist institutes run specialist seminars for the profession. There are also hundreds of specialist journals which provide regular updates and commentary on particular subjects."

He pointed to a recent essay in The American Scholar, called the "Disadvantages of an Elite Education", in which the American literary critic, William Deresiewicz, argued that the best American universities have forgotten that the reason they exist is to make minds, not careers.  

The WA judge said the same can not be said of Australian legal education.

"At the moment, from what the teaching of law still has a strong focus on general principle. But, there is a move, present in many places overseas and often dictated by the profession for law schools to  focus more on provision of specialised legal knowledge. 

"The profession is becoming more and more specialised. But my short message is that this is a trend which law schools should resist. The primary purpose of teaching law which is to teach students how to think and, in doing so, to challenge them to develop an understanding of how the law operates and how its constituent parts tie together."

 

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