The Role of Law Faculties and Law Academics: Academic Education or Qualification for Practice

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Pages: 15-33
• Author: Jonathan Campbell
• Date: 16 August 2019

15

THE ROLE OF LAW FACULTIES AND LAW

ACADEMICS: ACADEMIC EDUCATION OR

QUALIFICATION FOR PRACTICE?

Jonathan Campbell

BA LLB LLM

Associate Professor and Dean, Faculty of Law, Rhodes University

1 Introduction

Should the university law school trai n lawyers for practice or purs ue

a broader, academic legal education? This debat e about the nature of legal

education “goes right to the hear t of the place of law in the academy”.1 It is

a question t hat has been centr al to the literat ure on legal education si nce the

nineteenth cent ury and is not pecu liar to South Afr ica.2 Eighty years ago,

for example, England’s Society of Public Teachers of the Law wa s struggli ng

to come to terms wit h what they called the “pract ical man” in the form of

pressure from the org anised profession to prepare law students for practice:

“[W]e are bound to meet professional requirements without sacricing University standards …

[T]hose who enter the profession should be not only qualied but educated. A sound education is a

better equipment than a thorough knowledge of the law for one who is entering that profession …

[O]f the two elements that go to constitute the practical man, the man is so much more important than

the practitioner.”3

In the 1960s Twining somewhat deprecatingly prop osed two images of the

lawyer: the plumber, who needs techn ical expertise to b ecome a competent

technician, and for whom a st udy of the history and philosophy of plumbing

would be of little use in getting t he job done; and “the law-giver, the enlightened

policy-maker, the wise judge” who needs “a breadth of pers pective and a

capacity for independent and c ritical thought”.4 Kahn Freund d ismisses the

opposition between vocational and aca demic legal education as a “false

antithesis”, claiming that legal education has to be academic and ts graduates

very well for practice, even though it might not always seem t o relate closely

to the needs of the profession.5 More recently Savage and Watt, on the other

hand, see the law school in a more util itar ian role as a “House of Intellect” in

support of the profession.6 In t he last fteen years i n England there has bee n

increasing acknowledgement of the need for a broader-based qualication that

1 F Cownie Legal Aca demics (2004 ) 32

2 75

3 GL Haggen “The Tra ining of the Pract ical Man” (1933) Journal of the Socie ty of Public Teachers of La w

14 14

4 WL Twining “Per icles and the Plumbe r; Prolegomena to a Worki ng Theory for Law yer Education” (1967)

83 LQR 396 397-398

5 O Kahn Freund “ Reflections on L egal Education” (1966) 29 MLR 121 123

6 N Savage & G Watt “A ‘House of Intellect ’ for the Profession” in P Birks (ed) Pr essing Problems in the

Law 2: What are Law S chools For? (1996) 7 7

(2014) 25 Stell LR 15

© Juta and Company (Pty) Ltd

prepares gra duates for a number of career oppor tunities, not ju st the legal

profession.7

A similar debate has r aged in the United States of Amer ica in the last 20

years, with open hostil ity towards the “t rade-school” orientation of some

law schools on the one hand, and crit icism of law schools by the American

judiciary for focusing too much on abst ract theory rat her than practical

scholarship, on the other hand .8 The most recent 2007 review of legal

education attempts to capt ure both sides of this divide, re commending the

inclusion in the curr iculum of doctrine (cognitive), skills (pr actice) and

ethical-social moral disc ernment (professional res ponsibility).9 In 2000 the

Australian Law Reform Com mission emphasised “what lawyer s need to be

able to do” (a practice orientation) rather than what they “ne ed to know” (a

doctrine or ientat ion), and encouraged sk ills development programmes.10

In South Africa t here has been little legal scholarsh ip concerning the

disjuncture bet ween legal education and professional demand s, yet the

prevalence of this issue is no less evident. South A frican LLB degree s were

historically modelled on two approa ches to curricu la: the English “liberal

education” approach, which emphasised a broa der education in other subjects

before legal study; and the “U NISA model”, which focused on law courses,

with minima l subjects from other discipline s (which was predominant at

historically Afr ikaans and black universities).11

The tension inhere nt in the dual funct ion of law faculties is ap parent in the

“basic paradigm for legal educat ion” developed by the South African Law

Deans Association (“SALD”) in 20 05:

“Universities must … be cognizant of the needs of the professions, but not exclusively so – their

prime loyalty should be to the discipline of law, and to equip students with universal skills; and not

to any time-specic needs of a particular profession. At the same time, however, universities cannot

ignore these needs entirely. To do so, would create a situation in which their educational offerings

become irrelevant.”12

With the advent of democracy and in the c ontext of a lengthy history of

inequality, r acially segregated educat ion and the socio-economic divide

entrenched by apart heid, radical change to legal educat ion was deemed

necessary.13 The very relationship between law teacher a nd student was

perceived to be he avily inuenced by apartheid policy, and even to bolster

th is p olic y.14

A single four year undergra duate LLB degree was int roduced in 1997,15

driven by the Depar tment of Justice in the name of transformation: improved

7 L Greenbaum “ Current Issue s in Legal Educatio n: A Comparative Review ” (2012) Stell LR 16 23

8 19

9 WM Sullivan , A Colby, JM Wegner, L Bond & LS Shulman Educa ting Lawyers: Preparati on for the

Profession of La w (2007) 19

10 Greenbau m (2012) Stell LR 29

11 L Greenbau m “The Four-year Underg raduate LLB Degr ee: Progress and Pit falls” (2010) 35 JJS 1 6

12 SALDA Review of the LLB De gree (2005) 2 (copy on file wit h author)

13 Gre enbau m (2010) JJS 2

14 C Dhlamin i “The Law Teacher, the Law Stud ent and Legal Educat ion in South Africa” (1992) 109 SALJ

595 596

15 S 1 of the Qualif ication of Legal Pra ctitioners Act 78 of 1997

16 STELL LR 2014 1

© Juta and Company (Pty) Ltd