Legal Education and the Legal Profession
For most of his academic career, your blogger has been interested in both the legal profession and legal education. The topics are of course closely linked. Two recently published books are worth drawing to the attention of the readers of this blog, to help them get the attention they deserve.
The first is by Robin M. White and is entitled Dundee Law, 1865-1967 (Dundee: Abertay Historical Society, 2018). Your blogger has long been interested in the links between the development of formal lectures in law and local legal professions in Scotland, generally incorporated through the nineteenth century as Faculties of Procurators. It must always be remembered that the Law Society of Scotland was only created in 1949, and was established in large part to manage the legal aid system in Scotland, a task it no longer possesses. Local lawyers joined these local faculties, which still exist and help represent their members interests.
But prior to the creation of the modern law society, there had been attempts to rationalise and control the offering of legal services by acts of Parliament. The topic is not without its complexities, and your blogger will eschew dealing with it here. But one obvious thrust was to ensure that procurators, law agents or writers has received an appropriate level of education. Some acts required attendance at courses in law. This was not consistently preserved, however, though it did give some stimulus to providing classes aimed at lawyers other than the Faculty of Advocates, who had traditionally expected their intrants to have a university-level training in law.
This is the background to the early origins of the Dundee Law School. By the early decades of the nineteenth century, there was an incorporated society for procurators and writers in Dundee, which had a library, and a widows and orphans fund. Soon after Procurators (Scotland) Act of 1865, the local Faculty in Dundee promoted lectures for their clerks. Lectures were given on jurisprudence, civil (i.e. Roman) law, and various other topics. White is surprised at the choice of “civil law”, as it was not required under the act; but no doubt Dundee’s Faculty of Procurators and Solicitors recognised the subjects importance in Scots law. These lectures appear to have been abandoned by 1870.
The late Victorian period saw the establishment of many University Colleges through Britain and the Empire often in fact named for the Queen-Empress. In 1881, University College Dundee was accordingly founded. In 1890, University College Dundee became affiliated to the University of St Andrews. Shortly thereafter lectures on Scots law began, aimed at clerks or apprentices. But it was not an easy road, and the lectures lasted for only three sessions. But from 1899, there were continuous classes, serving the needs of apprentices.
In the late 1930s, a law degree, that of BL was finally established, requiring more teachers; after the War, a Chair in Scots law and a lectureship in civil lawyer established.In 1950 came the degree of LLB and the School of Law further developed, with a Faculty of Law created in 1955. White sees the period between 1955 and 1967 as the period when a modern law school was created in Dundee. Of course, his dates are fixed by events at Dundee, 1967 being the date of the chartering of the University of Dundee. But in the other Scottish law schools the same period saw the development of the modern degree of LL.B. as a first degree, and the possibility of it being taken with honours, with increasing recruitment of full-time teachers. One important development was that Dundee taught an English-qualifying as well as a Scottish-qualifying degree, a practice now copied by some other Scottish law schools.
A decade after the first, if abortive, lectures in law at Dundee, the American Bar Association (A.B.A.) was founded in 1878. This is discussed in John Austin Matzko’s thorough and entertaining Best Men of the Bar: The Early Years of the American Bar Association, 1878-1928 (Clark, N.J.: Talbot Publishing, 2019). This account of the first fifty years of this voluntary association explores themes shared with some of those in White’s work. Matzko’s overall narrative is that the A.B.A. developed within the reform tradition of the later nineteenth century, with the aim of ensuring proper professional standards for lawyers. In 1921, the A.B.A. adopted standards for legal education, which ultimately developed in 1952 to the system of law-school accreditation. White’s book is a detailed account of an institution; Matzko’s is a more expansive one, focusing on general social development, more of an exercise in intellectual as well as institutional history, engaging with historiographical debates, as well as detailed discussion.
The A.B.A has a conservative reputation as an institution dominated by corporate lawyers. Matzko’s history both to some extent challenges but also refines that over-simple view. Of course, professionalism can be associated with old-fashioned, “gentlemanly” values; but it does stand for independence in the face of either a capitalist focus, or a state-controlled system. Matzko’s discussion suggests that in origin the aims of the A.B.A. were professional, gentlemanly, and reformist, even if its members were part of the Amerian elite.
U.S. attorneys are members of their own state bar association, which sets its own tests for admission. This membership entitles them to practice before the federal courts. It was in the early era of the A.B.A. that the practice of setting state bar examinations developed. It is a testimony to ether success of the A.B.A. that it nonetheless became an effective gatekeeper for admission to practice. It also successfully promoted a focus on professional ethics.
Has the A.B.A. been a success? Was it just a means of elite lawyers oppressing the non-elite? It is not obvious how one would measure success. But one can point out that the status of the bar is secure; and its accreditation of law schools is accepted as legitimate. Matzko’s book, based on his PhD thesis, is an elegant and thought-provoking work, well researched and full of amusing and illuminating detail. Its story begs comparison with professional bodie sin Europe.
Both these rather different books are not only important additions to the literature on the legal profession and legal education, they cover the rise of the modern profession of lawyer, both Scotland and the U.S.A. they are part of a much bigger story than that they individually tell.