6. The Emperor's New Skills: The Academy, The Profession and the Idea of Legal Education

STUART TODDINGTON


Introduction

THERE is much current enthusiasm for skills provision in all aspects of education and training, and particularly in law, and in this essay I want to explore the question of what role the academy1--the university--should play in this regard. The most direct route into the problem is to ask what a comprehensive and vocationally relevant law degree curriculum should look like. A popular answer has been that it should be something like it always was, but with more attention to 'legal skills'. In one sense, there is much to commend this response, providing that we are not expected to accept that what is meant by 'legal skills' is self- evident. For the understanding of the enterprise of law we bring to the discussion of appropriate skills is a crucial determinant of our thinking about educational policy, and thus it falls to us to explain precisely what we mean by these central references to law, the legal and legal skills.

Given that it is no longer possible to discuss the idea of legal education independently of the importance of legal skills, in what follows I want to discuss the possible implications of the growth and spread of a number of ideas which are currently implicit in the skills debate. The ideas to which I refer concern conceptions of the legal enterprise, and conceptions of what types of theoretical information, organisational capacities and practical attitudes are appropriate to an understanding of it. Insofar as these issues are of academic concern, it is a matter of some importance how we arrive at these conceptions.2 In suggesting that there are ambiguities at the most fundamental stages of theorising the idea of legal education, I hope to make a preliminary case for a reorientation of the debate about the discipline of law in general by rethinking some of our ideas about legal skills. In particular I want to explore two areas of concern.

The first arises from the ambiguity of the relationship between the idea of the legal academy, and the actual activities and 'requirements of practising legal professionals. I will suggest that a laudable but insufficiently theorised consensus on the need for curricular 'relevance' has resulted in a narrowly 'professional' understanding of legal skills. This, I Will argue, is inhibiting the development of an imaginative and critical conception of not only the essential nature and wide importance of legal skills, but of the very idea of legal education.

The second, and related, point is that even in full recognition of the need to provide an academic input into specialist professional education, we find that the majority of skills required by Legal Professionals3 can in no edifying sense be regarded as distinctively

____________________
1
I am, of course, loading this term from the outset. By 'the academy' I refer to the institutional ideal which, although performing a multiplicity of functions, would value critical scholarship as an end in itself, and would at least wish to be seen to be connected with the virtues of open debate, rigorous and impartial analysis, and the importance of its 'imprimatur' in the dissemination of knowledge. This latter entails a constant awareness of the potential for subversion of research by economic and political interests, and the danger of disciplines being 'captured' by 'clients'. This process is particularly acute in the relationships between academia and regulatory institutions. It is open to anyone to challenge this conception of the idea of the academy, but these aims, to my mind, constitute a fairly uncontentious vision of critical scholarship.
2
There is much scope for confusion here: it is not only the idea of the subject matter of law, i.e., law as a phenomenon, which is problematic, but the idea of law as a discipline in the sense of a system of inquiry. From which disciplinary perspective are we supposed to conduct inquiry into legal skills? There seems to be a complacency about method in this regard with some reliance on a broadly 'sociological' approach to supplement the 'traditional' discipline of law. But the mysteries of law-as-object and law-as-critique are not solved by recruiting one or even a selection of 'sociologists' to tell us what they think law is, or how it should be studied. An all too rare example of sensitivity to this problem is summed up in the following remarks from Grace and Wilkinson:

Sociologists of law dupe themselves and their audience if they represent sociology as an unproblematic tool for the study of law. Moreover, the deception is compounded if law is taken as an unproblematic object of study. Law is often taken as the subject matter of the sociology of law. To deny this may seem an outrage, but it will be denied here. The assumed eminence of law for study, given its conrete existence, permanence and facticity, has contributed an unreflective attitude towards the sociological enterprise, particularly on matters pertaining to the nature of social phenomena.-- Grace C. and Wilkinson P. Sociological Inquiry and Lega Phenomena. ( Collier Macmillan, London, 1978), p.5

3
In speaking simultaneously of a rational model or an ideal- typical conception of law or of the legal profession, and also the actual body of person el and practices, confusion is unavoidable unless some device is used to distinguish the referent. When speaking of the actual historical and biographical entity, I will use upper case: e.g., The Legal Profession, when wishing to allude to a ration model or ideal-typical conception of an institution I use lower case, e.g., legal profession. This is a methodological necessity, not a stylistic whim. For a discussion of the importance of contrasting the ideal with the actual for purposes of social scientific analysis, Cf. Finnis J. Natural Law and Natural Rights. ( Clarendon Press, Oxford, 1980), Chap. 1; also my discussion of this in Toddington S. Rationality, Social Action and Moral Judgment. ( Edinburgh University Press, Edinburgh, 1993) Chap. 6. See also notes 5, 10, 11, infra.

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