THE great difference between law and moral philosophy lies in the obligation to come to decisions: day after day the courts have to give judgment. Law thus carries the extra burdens of certainty and consistency. This is what Blackstone means when he says, following Aristotle, that law is 'the principal and most perfect branch of ethics' and remarks on it as a matter of astonishment and concern 'that a science like this should ever have been deemed unnecessary to be studied in an university' ( Commentaries, 1.27). And this too is what the great Ulpian meant when he told first-year law students at the beginning of the third century AD that their business was to cultivate justice and to profess the knowledge of all that was fair and good, 'a genuine philosophy and not, unless I am much mistaken, a sham' (D.1.1.1 pr. and 1).
Many English practitioners preach a very different gospel. They profess to treat the law as though it were of no intellectual interest and calculated to narrow the vision of life. This is extraordinary, since everybody who studies law seriously, and reads the law reports, sees all the nooks and crannies of humanity; so far as 'breadth' means anything at all, the new lawyer is likely to have seen a good deal more than contemporaries reading history or geography or economics or sociology. John Mortimer, Q.C., nevertheless recently said, in an interview directed at the young, that it would be better not to read law at all, adding that he very much regretted having done so. 'Law isn't what I'd call an academic subject,' he said. 'For that you need something to which you apply some sort of original thought or imagination. Law is just a question of knowing it or not' ( Law Student, October 1992, 9). Patrick Phillips, Q.C., speaks much to the same effect. He takes the view that a law degree is a complete waste of time and says, with pride, that he reckons himself the better for never having attended a single law lecture (p. 17 below). You tend not to find consultant physicians disparaging their subject in this way. Nor patients in pursuit of doctors who have not read medicine. Unfortunately, the more students follow the Mortimer-Phillips advice, the more will end up doing their law in crammed conversion courses, where they will learn boiled-down notes by heart. The prophecy will seem to be fulfilled, but what will be proved is that crammers can ruin law as effectively as any other subject.
This low or trade view of law, far removed from anything that goes on in a decent law school, leads to all sorts of money-saving fixes--quick conversion courses, for example, for non-law graduates, law degrees heavily diluted with more watery matter, and two-year law degrees. The turmoil in the system (p. 9f. below) can be interpreted as a clash between the minimalist persuasion and those more of the Blackstone-Ulpian view, for whom law cannot but be a long study, arduous but intellectually rewarding. Whether our law is reduced in the twenty-first century to outlines and short notes distilled by crammers--what Romanists recognize as post-classical decline and vulgarization--will depend on the outcome of this struggle. Already, voices are heard to say that a smattering of business law picked up in a crammed vocational year will suffice. That smattering will have about as much relation to the real thing as a comic to a great novel.
On the continent the minimalists have no audience, no more than they do here when the subject is medicine, dentistry or architecture rather than law. The year of the single European market is not the best time for English lawyers to go for quick fixes which mean laxer standards of competence, less learning, and lower status. It is, in Blackstone's phrase, a matter of astonishment and concern that they have not risen to the challenge of these European transformations to demand more, to ensure that the profession is every bit as able and learned as in Holland, France and Germany. Amateur indifference to legal education is not a general feature of the common law world. The Americans and Australians, for example, insist on rigorous standards. But in Britain the Thatcher years numbered the universities among the enemies of the quick buck. They are. If everything, including the law, is not to end up jerry- built, we have once more to learn to value the foundations which they used to protect.
This book is about the post-core options. In other words it is about that part of the curriculum which is most threatened by the minimalist point of view and which is already by-passed where minimalist views have prevailed. Non-law graduates in England do no options. People studying for mixed degrees are not obliged to do more than the minimum six subjects. There must be serious doubts whether our European neighbours will continue to recognize such people as entitled to an equality of professional respect. Already our shorter short-cuts to professional qualification seem barely to satisfy the European requirements for