Examining the Law Syllabus: The Core

By P. B. H. Birks; Society of Public Teachers of Law (London, England) | Go to book overview

7. The Future of Company Law: Themes and Structures


The Starting Point1

IN this paper, we discuss our approach to teaching company law at the LSE as a springboard to a broader discussion of company law teaching. We do not seek to represent the LSE course as an ideal, but refer to it simply to show how we are seeking to develop certain ideas. The LSE company law course starts from the position that the teaching of company law within a degree level social science course will not be vocational, in the sense of taking as its primary objective the production of lawyers familiar with the intricacies of company law. This is not to say that we reject the value of teaching company law to potential practitioners.2 Indeed, we consider that a course which aims to instil an understanding of the purposes and functions of business entities and the regulatory schemes governing them and which promotes critical examination of these regimes will be rather more valuable to the budding City solicitor than one which attempts to teach him or her a set of rules.3 However, these aims will be equally appropriate to a student with no intention of becoming a lawyer, but with an interest in the role of corporations in society.

It is also important that this starting point should not be confused with a rejection of legal materials as a basis for study. We are here espousing a 'law in context' approach in the Kahn-Freund mould: one that does not go around legal technique but through it to policies.4 Company law is perfectly suited to this sort of teaching. There is a vast amount of relevant material being written from the perspective of other social sciences but much of this ignores or misunderstands the legal rules. A company law in context course of the type proposed should not simply examine this literature but should do so critically as a means of exploring the policy of legislation and case law and the implementation of this policy.

Critics of the 'law in context' approach have argued that it is 'essentially atheoretical' and 'has accepted the company as a given legal object.'5 We do not accept that contextualism is necessarily devoid of theory; nor does a law in context approach automatically 'accept the company as a given legal object'. Materials from many sources can cast light on the nature of the company, its historical development and the alternative methods of organization which could be, or could have been adopted, had circumstances been different. Competing explanations of the way in which the current position has been reached will encourage a critical view of the nature of the company and ensure that it is fully dissected. This is far from accepting the company as 'a given legal object'. For example, Chesterman, an exponent of the law in context approach, suggests that students should be encouraged 'to develop a coherently critical approach . . . based on a reasonably broad understanding of the social institutions and relationships with which they deal.'6 In a contextual course, the student's understanding will not be based on any one model, but will recognize that there are differing, often irreconcilable, views of the institutions and relationships being explored.

It is simple to talk in general terms of what might be done with a company law course. Translating this into reality is another matter. Quite apart from the limitations imposed by resource constraints, willingness of students to experiment and availability of materials, there are real dangers in a law in context course. This must be true in all areas, but is perhaps accentuated in the area of company law due to the amount of material available and its complexity. There is a major tension building up. On the one

In our view, there is nothing inherent in company law which makes the issues relating to its teaching essentially different from those involved in other areas. However, in order to focus this discussion on company law, we shall not enter into a general discussion of the philosophy of law teaching here but shall work from a stated starting position. The comments in this paper relate mainly to the teaching of undergraduate company law courses, since at graduate level the time constraints and issues surrounding specialisation, which we discuss below, are clearly quite different.
See Kahn-Freund's comments on the confusion of professional education with a vocational training in "'Reflections on Legal Education'", 29 MLR121 ( 1966). He criticises both the view that only that which is of practical importance is worthy to be taught and 'the perhaps even more pernicious superstition that the less a thing has to do with practice the better it is for the so-called training of the mind'.
For further discussion of this point see Bradley and Freedman , "'Changing Company Law?'" 53 MLR397 ( 1990).
Kahn-Freund, supra, at note 2. This view is discussed in Wedderburn "'An Anniversary Preface'", 50 MLR673 ( 1987). Wedderburn points out that now 'a different view has challenged these priorities. The primary subjection of the student to legal, especially to common law, techniques is said to scar the mind for ever. Instead, many advocate the prior importance of theory and wider education over old-fashioned legalism'.
Ireland, Grigg-Spall and Kelly, "'The Conceptual Foundations of Modern Company Law'", 14 Journal of Law and Society 149( 1987).
Michael Chesterman, Small Businesses, 2nd Ed. Sweet & Maxwell, London, 1982 at v.


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