A change for the better?

Many of us teaching in Scottish law schools will have received a recent email from the Law Society of Scotland announcing a series of planned discussions with various stakeholders about the content of the law degree and the diploma in professional legal practice. On balance, a proactive Law Society is an excellent Law Society as it ensures that those undertaking legal training are equipped with the necessary knowledge and skills to become fully-fledged members of the legal profession in its various forms. The task of the Law Society is not an easy one, however, and, given the sheer diversity of the profession, it must be difficult selecting future priorities. In the latest round of proposed discussions, three topics are worthy of comment:

1. Legal technology. The nub of this part of the proposal is to investigate whether the current levels of “technology skills” across the degree and diploma are too “generic” and could/should be changed. Of course, this is in a sense “blue sky and apple pie”, since no one could argue against the position that the lawyers of the future will be required to make greater use of technology. But technology can never replace a sound and critical knowledge of the law, no matter which database one has access to or how sophisticated one’s word processing programme might be (not that this is being suggested of course). To understand the law, one must have the skills not only to find the law but also to process it intellectually using one’s knowledge of certain rules and procedures learnt through a period. Greater use of technology can, of course, assist with and improve upon this process but it is not an end in itself. It certainly can never replace “black-letter law” in a degree.

2. Critical non-black letter law skills. While the current configuration of the degree and the diploma deals with skills extensively, this proposal suggests that other matters (e.g. “project management”) could be added. Again, it is difficult to argue against this since skills are important. But what these “critical non-black letter law skills” are, for example, and on whose judgement certain skills will be judged to be “critical”, remain open to question. One might ask, for example, whether “project management” is something that everyone needs and whether, in light of the requirement of CPD, this could not be offered in a more targeted fashion. Perhaps rather than focusing on “critical skills”  disassociated from “black-letter law”, more attention should be given to the “critical black-letter law skills” that law students require. Based on nearly two decades of law teaching, my view is that law students need a. More time to think; b. More time to write and more opportunities to develop their writing; and c. Better research skills (not merely the use of databases). To understand the law, one cannot just learn it by rote or hope to find it by plugging some keywords into a database. Whichever belief one holds about the nature of law, it cannot be denied that law is about argumentation and that much of it plays out across the pages of books, articles, and court decisions. Critical reflection on arguments pro and contra are required. This takes time. Of course, one might argue that the aim of a law degree is to form lawyers who apply the law rather than jurists who reflect upon the law critically, but these two aims cannot and should not ever be mutually exclusive. The best lawyers are those who can reflect on the law critically when applying it.

3. Other matters. According to the email from the Law Society: “Some have suggested that as we move towards exiting the European Union that this should see an increased focus on language skills, trade law, international arbitration, private international law etc.” These topics of discussion are to be welcomed, since they represent attempts, at the very least, to maintain relations with our European neighbours post Brexit. There is, however, one topic which is sadly lacking from this list, namely legal history (both Scottish and European). In a country with such a rich history of intellectual exchange in the field of law with our continental neighbours (especially via Roman law), it is regrettable that the Law Society does not view legal history as a priority, especially during this time. Of course, a professional regulatory authority is primarily concerned with equipping lawyers with up-to-date knowledge of the law, but in an uncodified legal system such as that of Scotland, knowledge of what the law is cannot be separated from knowledge of what the law was. To any student of law, Scottish or otherwise, the past is never “… a foreign country” (L.P. Hartley). And few people today still believe that “history is just one damn thing after another” (whoever the author of this quotation may be). The past changes regularly and is therefore in continuous dialogue with the present. As such, one suspects the time has come for legal history to form a more critical part of the curriculum, rather than merely as an elective at honours level or as a few sparse comments on Institutional Authority in a first-year survey course. No one can, of course, deny that the study of history is both ideological and political. But it is precisely these features that make the study of history, and legal history in particular, so much more critical as we head towards Brexit and beyond.