Rule of Law and Legal Education: Do They Still Connect?

Monday, January 2nd, 2017

I’ve put a new paper up on SSRN.com on the rule of law and legal education. The introduction reads:

When we connect legal education and the rule of law it has two connotations: to what extent should legal education be protected by the rule of law, and to what extent should the rule of law be taught within legal education. It is not difficult to see how both connotations
could cause problems in certain countries where the rule of law might exist in
a different form. For example, China is becoming a rule of law-based country in
respect of its commercial and intellectual property rights. Yet its record on human
rights and the due prosecution of them is abysmal. The rule of law like most
legal rubrics is slippery and tends to avoid easy definition (May 2014). Jeremy
Waldron captures this when he says “…people’s estimation of the importance of
the Rule of Law sometimes depends on which paradigm of law is being spoken
about (Waldron 2012: 9).” For Aristotle safety was located in customary law and
for Hayek it was the evolutionary development of the Common Law (id; but cf.
May 2012). Tom Bingham’s idea of a thick definition of the rule of law has
appealing since it is elastic and has an anthropological intuition about it
that maintains a connection to community (Bingham 2010). In contrast to Waldron
who would keep the rule of law at a meta-level rather than a substantive one,
Bingham includes specific instances of rule categories such as, notably, the
Universal Declaration of Human Rights in which the right to education is
enshrined (id: 83).

In this chapter my focus is not so much on the theoretical debates surrounding the rule of law
but rather how it is implicated and treated in the developments of modern legal
education and practice. I first analyse the changing legal world for which the
salient period is the post-World War II to the present. We have the rise of the
international and transnational institutions and the emergence of the modern,
organization-based, and increasingly financialised, legal profession that plays
a significant role in globalization. To provide the labour force for the
profession the academy’s role has come to the fore and is now the main gateway
to the legal profession. Even with its duality of roles as reproducer and
gatekeeper, the academy is now more remote from the profession. This in part
reflects a desire on the part of the legal academy to be a more academic and
intellectual member of the academy than hitherto (Cownie 2004). The rise of
subspecialties within law marks this shift as does the increased number of law
professors with PhDs, often in other disciplines. The increased tensions
between the academy and the profession have fostered argument over both the
content and structure of the law degree. One might almost ask if the issue is
not so much the rule of law but the rule of lawyers. Finally I examine some of
the challenges for legal education—such as the rise of legal technology—that
will have enormous effects on legal practice and the rule of law, especially
where it abuts access to justice.

My approach to the topic is essentially sociological, which means I ask under what conditions
would the rule of law be promoted or diminished and by whom? In this respect I
look to the legal profession, courts, and legal academy as key players. By this
I mean they are crucial to the design of the legal system and its
implementation. The relationship of the legal profession to the state or market
can signify to what extent lawyers might be viewed as radical or conservative
in their approach to legality and juridical questions (Rueschemeyer 1973). For
example, Weber (1978) saw the English legal profession as a craft-based
profession with relatively little input from the academy. The development of
the common law therefore depended on the creativity of practitioners who became
used to devising solutions to problems as they arose. In the absence of a legal
code, lawyers innovated in law through an ad hoc process. On the mainland
continent, and in many other countries, the civil code system depended on
commentaries by academics that kept the law in tune with its primary
principles. This resulted in a different but less innovative law making. Thus,
for example, whereas in Germany pfandbriefe
are creatures of statute, in the UK they were created by contract using common
law principles (Flood 2007). The alliance between the state, academy, and legal profession is much stronger in code systems whereas common law jurisdictions are typically associated with
the market and so depend far more on practitioners.

 

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