3. Legal Education in the Twenty-First Century: A Time of Challenge

EUGENE CLARK AND MARTIN TSAMENYI


1. Introduction

THE aims of legal education in any particular era are influenced by the wider social context in which legal education operates and challenges which emerge from this context. This chapter surveys some of the most significant challenges facing Australian legal education as it approaches the Twenty-First Century. Its thesis is that the aims of legal education cannot be stated in the abstract or separated from the context in which legal education must operate. Accordingly, in searching for the aims of legal education in the next century one must identify the likely challenges faced by legal education in the years ahead and how legal education may/should respond to these challenges.

Among these challenges are how to: maintain the long tradition of the Western legal system with its centrality of law and moral authority; adjust to the problems of a increasing numbers of law students and declining educational resources; pursue multiple and sometimes conflicting purposes of legal education; cope with the forces of internationalisation; keep up to date with the rapid changes brought about by technology; find adequate resources for legal education; ensure that the legal education offered is of a high quality; enhance equity and access to legal education for all levels of society; adjust legal education to meet the needs of a multi-cultural society; move from large group teaching relying on lectures to small group teaching founded on principles of adult learning; and provide sound educational leadership for law schools in the midst of the corporatisation of our universities.

While the context in which these challenges are discussed is Australian, the broader issues encompass areas relevant to all legal educators facing similar problems, especially those in countries, such as the UK, which are undergoing a major review of legal education.1


2. The Challenge of Tradition: Looking Backward In Order to Look Forward

2.1 The Western Legal Tradition

The aims of legal education in Australia are fundamentally shaped by its history as part of the Western tradition of law which in turn has roots in Roman, Greek and Judaeo-Christian thought. Parkinson2 argues that the Western idea of law has three distinguishing characteristics.

The first is the autonomy of law. Thus, law has its own institutions (courts), its own profession, a separate university discipline, its own language and so on. This contrasts with other societies in which law is primarily a function of politics or a manifestation of a religious system. As Birks3 has noted, the law school and academic research and writing have played an increasingly important role in preserving the literature of the law. This has been acknowledged by Courts and the profession which has increasingly turned for guidance and direction to learned treatises written by law academics.

The second distinguishing feature of the Western tradition identified by Parkinson is the centrality of law. Law permeates every aspect of society.4 This feature is in contrast to legal systems, for example in China or Japan, where citizens infrequently resort to a legal system which operates in a much more narrow sphere.5 One result of law's centrality is that many groups in society are concerned about the nature of legal education and have a stake in its development.

____________________
Parts of this chapter appeared earlier in Law Teacher, the Journal of Professional Legal Education and the Journal of Law and Information Science. The authors also acknowledge and thank Professors Jack Goldring and Francine Feld-Moore for their invaluable comments on earlier drafts of this chapter.
1
In Australia, the two most recent major reviews of legal education were the Pearce Report ( Dennis Pearce, Enid Campbell, and Don Harding), Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission ( Canberra, Australia 1987) (Pearce Report)) and Report by C. McInnis and S. Marginson, Australian Law Schools After the 1987 Peacre Report, Centre for the Study of Higher Education, University of Melbourne, 1994 ( McInnis and Marginson). In the UK, a major review of legal education is being undertaken by the Lord Chancellor's Advisory Committee on Legal Education which is required by the Courts and Legal Services Act 1990 to keep under review the education and training of those who offer to provide legal services. In the United States, law schools are addressing the implications of the McCrate Report relating to the teaching of legal skills (Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, Legal Education and Professional Development-- An Educational Continuum ( American Bar Association, Chicago, 1992).
2
P. Parkinson, Tradition and Change in Australian Law ( Law Book Company, Sydney, 1994) at 24-29.
3
P. Birks, "'The Historical: Context'" in Birks, P. (ed) Reviewing Legal Education ( Oxford University Press, 1994) Chapter 1.
4
Parkinson, op cit, at 26.
5
Parkinson, at 28.

-17-

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