HIS INTRODUCTORY chapter, Mark Van Hoecke identified a number of different approaches to legal research.1 The following chapter uses an alternative starting point in order to discuss the variety of legal research: I wonder what would be lost if law professors disappeared from the world. One purpose of this thought experiment is to identify for which type of legal research we really need legal academics, or whether legal scholarship could also become part of other social sciences or humanities. Moreover, it will be discussed how this relates to legal teaching and education: do we need law professors to train lawyers, or would it be feasible to separate education and research?
In his book the The World Without Us, Alan Weisman examines how the world would react if humans suddenly vanished.2 In order to answer this question he starts with a look at the world before us. However, his analysis is not limited to it since the future of a world without us would not perfectly mirror the past. Moreover, he addresses the policy question of his scenario: ‘Is it possible that, instead of heaving a huge biological sigh of relief, the world without us would miss us?’3
Inspired by Alan Weisman’s book, this chapter will study the thought experiment of a world in which we extract not all human beings but ‘just’ law professors.4 The term ‘law professors’ needs further explanation. I will use it for every legal academic who teaches and researches at law schools/faculties in universities. It does not cover practitioners who are engaged in legal teaching and writing, or academics from other disciplines interested in law. Indeed, the two main parts of this chapter discuss whether the functions that in the current system are performed by law professors cannot also be performed by other persons or institutions.
The scenario of this chapter is not entirely hypothetical. In the United Kingdom and the United States a number of new law schools have been established in the last few decades,5 whereas in Germany two universities no longer offer undergraduate law teaching.6 The scenario of a world without law professors is also a useful hermeneutic tool in order to reflect on the role of law professors in the current system, for instance, the relationship between teaching and research, the delegation of teaching to practitioners, and the changing focus of legal research. These points will be picked up in the final part of the chapter.
II. LEGAL TRAINING AND EDUCATION
A world without law professors could be disastrous for legal training and education, and thus the legal and economic system as a whole. Although it is difficult to establish a causal relationship between law and economic development,7 the present chapter accepts that we need legal rules as well as lawyers with expertise in these rules.8 However, one could argue that legal education, or at least legal training, could also be provided by other institutions.
A. Legal Training by Other Institutions
The usefulness of university- or institution-based legal training has often been questioned. In the early twentieth century Thorstein Veblen asserted that ‘the law school belongs in the university no more than a school of fencing or dancing’.9 Also, at the end of the century, Juergen Ostertag compared theoretical legal education to the school of driving which attempted to teach people how to drive by teaching a detailed manual of the car and then allowing trainees to drive in traffic.10
A first counter-model would be that law is (again) to be learned in an apprentice system. In the longer historical context, university-based training is a recent development in Common Law countries.11 Today, however, most countries ‘only’ have a vocational stage in addition to an institution-based (usually, university-based) education.12 This is also part of a wider trend because in many countries universities are now engaged in fields such as nursing or social work which used to be left to vocational training.13
At least for legal education, there are good reasons for this development. Due to the growing juridification of society, it cannot easily be assumed that prospective lawyers would learn everything they need to know ‘on the job’. Given the complexity of the legal system, an institution-based legal education can ensure that the knowledge and wisdom of the current generation of lawyers can be handed over to the next one.14 Historically, Frederick Pollock defended university-based legal education since it is a technical study ‘which cannot be undertaken here, or not so well here as elsewhere’.15 Thus, an apprentice system could provide a certain level of legal training but, even in a world without law professors, it would not be chosen as the sole means of transmitting legal knowledge.
Thus, a second, and more realistic, counter-model would be based on legal training in law schools whose teachers are not law professors or other academics. These law teachers would be practitioners who do some part-time teaching, or who teach full-time for a defined period of time. Some may argue that this cannot work. In 1887, the US-American jurist Christopher Columbus Langdell alleged:
If it [ie law] is not a science, it is a species of handicraft, and may be left by serving an apprenticeship to one who practises it. . . . If printed books are the ultimate sources of all legal knowledge, . . . then a university, and a university alone, can afford every possible facility for teaching and learning law.16
This Langedellian view of law as ‘law in books only’ was, however, already discredited by the US legal realists of the early twentieth century. Jerome Frank also proposed a major reform of teaching law students.17 Many law schools, he claimed, were not equipped to train lawyers but to graduate men able to become law teachers. Thus, they were not ‘lawyer-schools’ but ‘law-teacher schools’. Instead, he suggested a ‘clinical lawyer-school’ where a considerable proportion of law teachers should not have less than five to 10 years of varied experience in the actual practice of law.18
More recently, the Carnegie Report for the Advancement of Teaching Report on Educating Lawyers followed a similar line of reasoning. The Report criticised that most American law schools ‘give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice’ and therefore fail ‘to complement the focus on skill in legal analyses with effective support for developing ethical and social skills’.19 Thus, one may applaud the development that in many US law schools, teaching is increasingly delegated to adjunct professors.20 William Wang goes further and proposes to unbundle the distinct services that the law school offers to students. In particular, he suggests that the impartation of knowledge, skills and values can be performed by tutoring firms and producers, sellers, and renters of books, videos, and computerised instruction.21
It may be argued that these suggestions may be working in the United States because, being post-graduate institutions, US law schools already have a vocational focus, whereas in the United Kingdom (and other European countries), law faculties provide general legal education.22 However, this difference should not be overemphasised. In the United Kingdom too, the main focus of legal education is on teaching students to become practicing lawyers.23 Moreover, it can be suggested that the United Kingdom is already on the path to a clinical lawyer-school. For the purpose of entry into professional training, it is regarded as equivalent to an LLB degree if a non-law graduate passes a one year Diploma course. Such a course is not only offered by universities but also professional schools, such as the College of Law and the BPP.24 In addition, the BPP has just started its own LLBs and LLMs programmes, mainly taught by practitioners.25
From a continental European perspective it may, however, be objected that the academic nature of the Civil Law tradition would rule out any legal training without the involvement of universities. In the Civil Law world the first law professors emerged in Northern Italy in the 12th century. When the Italian city states increased commerce and trade, there was a need to expand and improve the legal system. This was done by way of reception of the Corpus Juris Civilis, which, however, needed law professors to understand and categorise the content of these rules.26 This academic background can still be felt today. For instance, Pierre Legrand argues that there are major differences between Civil Law and Common Law countries. Whereas the Common Law is said to be inductive, pragmatic, fact-bound, and past-oriented, the Civil Law is deductive, logical and systematic, rule-bound, and future-oriented.27
The predominant view is, however, that these differences between Common Law and Civil Law should not be exaggerated.28 The undergraduate degrees of Continental European universities are also not ‘deeper’ than the LLB degree of UK universities. For instance, in Germany, as in England, the main focus of undergraduate courses is on the legislation and court decisions of the core areas of law (contract, tort, criminal, constitutional law, etc) and how these rules would apply to hypothetical cases. There is also a similar level of abstraction. For instance, contract law textbooks in both jurisdictions enlist the requirements for the formation of contracts, the validity of contracts, contractual remedies, etc in general terms and provide details on how these requirements are understood by courts and academics. This does not mean that the approaches to teaching law are identical in Germany and in England. However, for present purposes it is decisive that in both jurisdictions the majority of university-based legal training is not very sophisticated from an epistemological perspective but is predominantly knowledge transmission.
Thus, in Civil Law countries too, practitioners would be able to provide legal training equivalent to the current university-based training. In reality, a significant involvement of practitioners in teaching already takes place in many Civil Law countries. In Italy and the Netherlands it is common that law professors also practice as advocates. In Germany it is even the case that 95 per cent of all undergraduate students receive the majority of their undergraduate legal training from practitioners. These persons, called Repetitoren, prepare students for the First Juridical Exam. Students use these training courses because university classes are typically very large and German law professors are not able to tutor individual students. Since in many German cities there is an oversupply of practicing lawyers, these lawyers offer tailor-made training courses on a commercial basis.29
The overall result is that in a world without law professors ‘purely professional law schools’ would provide the legal training currently offered by universities. In general, the provision of this training would be similar to the existing one. However, there may also be two differences.
First, this concerns the substance of teaching. Practicing lawyers would be less interested in the abstraction of legal rules (or even their ‘supercomplexity’30) than academic teachers. In contrast to academics, they would also put more emphasis on persuasion than on establishing the ‘correct answer’ to a particular legal question.31 This sounds like a shortcoming but it can also be seen in a more positive light. According to Oliver Wendell Holmes, ‘the business of a law school is not sufficiently described when you merely say that it is to teach law, or to make lawyers. It is to teach law in the grand manner, and to make great lawyers.’32 Holmes did not specify these terms in detail. Presumably, he meant that lawyers should not only know the law but also learn how to think and how to perform like a lawyer. In this respect, teaching by practitioners may be advantageous because it can lead to more complete lawyers.33
Second, the amount of legal training may change. Currently, the majority of UK undergraduate law students do not go on to practice law.34 Thus, a market for legal education, where law schools are entirely run by the professions, may reduce legal education. In addition, the present class of practitioners may decide to train fewer lawyers than under the current system in order to be sheltered from competition. However, this outcome is not unavoidable, because the Government (or competition authorities) may step in to prevent a commodification of legal training.35 For instance, it may decide to establish state-run professional law schools where practitioners are hired to teach law. Furthermore, even without law professors, universities may still provide deep legal education.
B. Deep Legal Education
It is often said that legal education should not only focus on teaching the legal rules to undergraduate students. In substance, legal education should be part of a liberal education. Thus, there should also be a training of ‘intelligence and sensibility’,36 of ‘moral experience’,37 of understanding law ‘marked by methodological and epistemological diversity’,38 and of the skills to encourage students ‘to think for themselves’.39 In the UK context, William Twining also suggested that university law schools should adopt a broader and more ambitious role than they have in the past. They should reach
from legal literacy to judicial training; from different kinds of law or non-lawyers to advanced specialist studies for a variety of consumers; from primary academic and vocational studies to continuing education that ranges across the whole spectrum from ‘get-skilled-quick’ to ‘get-wise-slow’.40
This broader role, he argues, can only be fulfilled by a law school which is an academic institution devoted to the advancement of learning about law.41
In the scenario of a world without law professors, various points have to be distinguished: first, some of these additional functions can also be fulfilled by purely professional law schools. For instance, these law schools too can teach students ‘to think for themselves’ (it really depends on how legal topics are taught and not who teaches them). Practitioners would also be very well equipped to provide more general education on the law, may it be to other lawyers as continuing education or to the general public. This can also be shown in the context of transition economies. Lawyers from the West have provided legal education in order to facilitate the transition of former Communist countries to market economies.42 Academic lawyers, however, may often feel overburdened by the request to suggest rules that will be directly relevant to the practice of an unfamiliar legal system,43 whereas legal practitioners have more experience in applying the law into different socio-economic contexts.
Second, there are some subjects which cannot easily be taught by practitioners. For instance, many of the old ‘legal x’ and new ‘law and x’ topics are part of legal education.44 However, legal practitioners would usually not have the time or interest to teach topics such as legal philosophy, legal history, legal sociology, law and economics, law and finance, law and religion, etc. In a world without law professors this can be solved by shifting these topics to other schools or faculties of the university. This may require some reallocation of resources; however, it may not be unfeasible because disciplines such as philosophy, history, or economics already have an interest in the role of law in their own disciplinary context.45 Then, for instance, some of this law-in-context education may be made a prerequisite for a law degree. Or, in reversal to the current situation, academics from these schools and faculties may be invited to deliver guest lectures at the purely professional law schools.
Third, supporters of the liberal arts view of legal education may still object that purely professional schools and non-law faculties alone would not be able to cover all aspects of a deep legal education. For instance, some topics of jurisprudence, deep-level comparative law or legal research methods may not be sufficiently interesting to either of these two types of institutions.46 However, in the current system of legal education, these topics only play a marginal role.47 Thus, from the standpoint of the present system with its focus on learning the legal rules of a particular country, a world without law professors would not leave a considerable gap in legal education.48
Without academic teachers, legal training would shift back to the legal professions. Purely professional law schools would provide legal training for future lawyers. This is feasible in both Common Law and Civil Law jurisdictions. These professional law schools can also be involved in a more general provision of legal education. In addition, non-law faculties of universities can take responsibility for teaching on law-related subjects. This role of other parts of the university will also become apparent in the following section on legal research.
III. LEGAL RESEARCH AND WRITING
Without law professors, law would disappear as a separate academic discipline. Some may applaud such a development. In 1848 Julius von Kirchmann gave a controversial talk at a lawyers’ conference in Berlin in which he claimed legal research to be worthless because it did not aim to establish general truths but merely to support the current legal system.49 A similar criticism can also be found today. For instance, it is said that