Today's Law Students Need to Be Taught the Value of Critical Thought
While the constitution has dramatically shifted our law, legal education has not experienced the same transformation. Law faculties have seen some changes in recent years, notably the introduction of the new four-year LLB and the development of courses focusing on human rights. But these changes can hardly be described as a transformation, and I have a much more fundamental shift in mind when I say that legal education has not kept up with the changes in our law and society.
Our constitutional transition involves, or at least demands, a shift in legal culture. Whereas pre-constitutional law placed a high premium on certainty, the determinacy of words and the authority of legal texts (actually on authority, period), the new constitutional regime calls for justification in terms of values and policy, even politics, as part of legal analysis.
It insists on heightened sensitivity to the daily realities of especially the poor and marginalised and an active effort towards social change. Etienne Mureinik - the late human rights activist and academic - succinctly labelled this shift as one from a "culture of authority" to a "culture of justification". The question is what this implies for legal education.
The adjustment in curriculum that we have already seen is a fairly obvious response. Much more difficult is educating students not only in the new substance of the law, but also in the new legal method. Matters of morality and policy can no longer be excluded from legal analysis. This requires a much greater emphasis on the context in which law operates, the society that it intends to regulate, in our case, to transform.
The door of the law lecture hall can no longer be shut to what is going on out there. The shift required from law teachers to instruct students in this new paradigm will in many instances be quite radical. It will question our own professional sensibilities and require a critical self-assessment of our capacity to engage in the kind of value-based reasoning that we are now required to teach.
A much greater interdisciplinary approach to legal education is also called for. More emphasis must be placed on the integration of law with other disciplines, obvious examples being economics, philosophy, political science, sociology, psychology and public administration. Without skills in these areas, students will not be equipped to engage in the substantive mode of reasoning required by the constitution.
In this package of skills, perhaps the most important is creativity. Our constitutional transition challenges us to be creative, to imagine new ways of doing things in law. In turn, this challenges legal education to foster creativity. We must train lawyers to be innovators under the constitution, not simply technicians.
However, the biggest challenge lies not in what we teach, either in substantive law or skills, but in how we teach. …