LEGAL EDUCATION: CONTEMPORARY TRENDS AND CHALLENGES*

LEGAL EDUCATION: CONTEMPORARY TRENDS AND CHALLENGES* <!--[if gte mso 10]> LEGAL EDUCATION: CONTEMPORARY TRENDS AND CHALLENGES* By Dr. Muhammad Farogh Naseem, LL.B. (Hon.) (Wales), LL.M. (London), Ph.D (London) of Lincoln's Inn, Barrister-at-Law [October 3 to 5, 1997] The topic of discussion "Legal Education" is of extremely wide import. In the time allotted I shall endeavour to bring out certain essentials. * A paper presented at the 6th SAARCLAW Conference, "The Legacies and Challenges", held at the Karachi Sheraton Hotel and Towers, Karachi, Pakistan. What ought to be the aim of legal studies? In most countries with the common law tradition legal education has only in comparative recent times established itself as an acknowledged discipline in Universities. In England it was only in 1826 that the foundation of the first modem University Law School was laid in the form of the University College London.[1] In the common law tradition law was taught under an apprenticeship system whereby the knowledge of law was picked 'up in the course of legal practice without any systematic instruction. The lawyer was not expected to be a social scientist. He was to apply the law without exploring or speculating upon what the law was about; what was and should be the role of the law and the lawyer in a society; whether it was capable of responding to contemporary needs. In striking contrast, in the countries with the civil law tradition Universities were founded for the purpose of education for the professions, especially law.[2] The essential feature of academic legal education is the provision of a better philosophic and rationalistic orientation. On one hand, we have the traditional legal training only as an apprentice, while on the other hand we have the academic legal training. I think that a choice cannot be made between the two, but rather a balance needs to be struck between the two approaches. Both are extremely essential. In recent times law has been reckoned to be an instrument of social change. In foreign universities the curriculum lays great emphasis on the impact of law on society and its development. I fully agree with the conclusions of Professor Ralph Fuchs who has categorically observed: [3] "-----today's major need in training lawyers lies in the development of understanding of the institutions and problems of contemporary society, of the lawyer's part in their operation, and of the techniques required for professional participation in solving the major problems with which lawyers deal." A person who studies or trained to be a lawyer must be thoroughly acquainted with his country's history without which a student of law will be unable to appreciate the evolution of 'the country's legal system and the interaction of its legal institutions with other organs of the State and the surrounding circumstances. Without some knowledge of world history and the cultural contributions of civilizations, he will be at a disadvantage in comprehending major international events that may exert an influence on the law. Without some proficiency in general political theory and insight into the structure and operation of Governments he will be handicapped in apprehending and approaching problems of constitutional and public law. If he lacks training in economics, he will fail to see the close relations between legal and economic questions which exist in many areas of law. Without grounding in philosophy, he will find it hard to deal with the general problems of jurisprudence and legal theory which are essential to exercise a decisive influence on judicial and other legal processes. It has been pointed out with great force by Freund [4] that any academic discipline worthy of the name must equip the student with the capacity to think critically. He has further depreciated the tendency of academic institutions to indoctrinate the disciples. It is Freund's view which I fully endorse that legal education needs to teach both the law and in context, social, political and theoretical. It is the combination of these that renders the law a particularly valuable educational discipline. To sum up the above I would think that the aims and objectives of legal education in a modem civilised society must necessarily include the following:-‑ (a) to inculcate students with the operative legal rules, both substantive and procedural; (b) to provide the student with adequate experience to apply these rules; (c) to equip the students with sufficient knowledge of the historical and sociological background of the country's legal system; (d) to provide the students with some knowledge of the other legal systems of the world so that the students do not find themselves at a complete loss when it comes to adopting a comparative approach; (e) very significantly, the students should be encouraged to participate in discussions, seminars and challenge the very premise of legal concepts and their applications. This can better be achieved if courses are taught in terms of concepts rather than the contents. The above ought to be adopted and applied in the law curricula of our Universities and Law Colleges. However, I think that we in Pakistan have not been able to achieve such targets. I think the main reasons for an inadequate and failing legal education in our country are the general apathy and skepticism of almost every one. This I shall venture to explain. The Law Colleges are not properly funded in view whereof the library facilities are not up to the mark and the teachers are not properly paid. Also the major Law Colleges of the country are not offering full time courses and are only running evening classes. However, the very crux of the problem is that law as a profession and legal education as a discipline are not the popular choices for students in the large majority of the cases. Most students who perform well in their Intermediate Education aspire to study medicine, engineering, computers, business, management and accounting. It is usually the case that the students who are not able to find placements in these disciplines consider studying law as a matter of last resort. This is in striking contrast with the prevalent situation in England and in America and many other developed countries. For example in England admissions to law schools are highly competitive. To get into Oxford and Cambridge even three A's at A-levels do not guarantee a place in law at the under-graduate level. For other Universities the requirements are slightly relaxed but even so they are very competitive. Similar position obtains in the United States where the law schools require very high scores in the Law Schools Aptitude tests and a very high Grade Point Average in the first degrees. In this manner, the law schools are able to attract the best amongst the student population. The end result is also very healthy since this cream of students richly contribute their shares to the society as lawyers, judges, para-legals and academics. The reasons for a general apathy in our student population to study law and the keenness to study the same by their counterparts in England and America can be explained. A fresh law graduate (J.D.) from the Harvard Law School or some other University of repute in the Untied States does not find it difficult to get a start between 80,000 to 100,000 US $ per annum in a good law firm in Pakistan I am afraid that a fresh law graduate without any family support may even have to live below the subsistence level in the initial years of his practice. I have recently conducted sortie sample surveys of the prospective employers of fresh law graduates. The reasons attributed by them for an extremely low pay to fresh law graduates is that the majority of the law graduates are unfortunately not properly versed with even the law subjects that they claim to have cleared in their recent examinations. In other words, the prospective employers relate the incompetence and inferior quality of the law students with the diminished pay scales. On the other hand, another sample survey conducted by me of the students who pass their intermediate college examinations confirm that the main reason why such students do not like to pursue careers in law and hence the legal education is that the pay scales of fresh law graduate are far from favourable. This would reveal that we have been caught in a vicious circle of cyclical arguments. This analysis would further show that legal education in our country is in a travail, being caught in a catch-22 situation. Unless and until some drastic measures are taken I am afraid we would hurtle into a chasm without any hope of rescue. In my humble opinion the foremost and fundamental aspect which warrants immediate attention is that we should make an effort to make the legal education in our institutions more attractive for the prospective student population. In this regard, legal education should be make full time without any delay. Secondly, the Law Colleges should made the admissions in F.E.L. (first year LL.B) extremely 'competitive. This may entail not only raising the percentage marks of Intermediate Examinations required for admission in LL.B, but may also involve introduction of entrance tests for the candidates. Additionally, law colleges should publicize that admissions are available for exceptionally bright candidates since the curriculum is extremely competitive. Also the admissions should not be offered to about one thousand candidates in F.E.L. and the same should only be restricted to 50 to 70 candidates in a year per college. This may appear to be an artificial mechanism but the same is quite workable. If the admissions are made extremely competitive albeit artificially, this is bound to generate a feeling among the prospective student population of a desirability to read law. This is but employing the fundamental principles of supply and demand in economics. If this aspect is accomplished, it may no doubt create a scarcity of fresh graduates, but so be it since there is already a gullet in the number of lawyers and fresh law graduates. The next step would be to improve the curriculum. The present LL.B. course which is approved by the Pakistan Bar Council spreads over three years.' On an average, about 10 to 12 subjects are taught in one year. The method of teaching encourages the students to learn the bare provisions of the statutes. Only selective case-law is taught. Hardly any or no legal concepts or philosophies are inculcated. I am afraid the state of affairs are far from satisfactory. To start with the students should be encouraged to understand the legal concepts. This cannot be done by studying and memorising the bare provisions of the statutes. In the English Universities four to five subjects are taught in one year. The idea being to teach the students not only the actual provisions of the statute but also to familiarize them with the entire legal process surrounding such provisions. This is done by not only teaching the historical perspective but by also showing how such particular provisions are suitable to the circumstances and remedy the mischief, if any. The study does not stop here. An in-depth and detailed analysis of how such provisions are applied by the Courts in practice is taught. The student is further encouraged to offer his critique on the statutes and judgments and whether the same are in consonance with the requirements of the day. Also the students are encouraged to offer their recommendations for change and their reason for coming to the conclusion otherwise, that the law is satisfactory and requires no change. During the studies students should be continuously assessed so as to ensure that they are working throughout the year, while at the same time avoiding excessive cramming. At the end of the day, the examination standards have to be drastically improved. The examiners should ensure that the questions are not extremely unimaginative and simple: e.g. questions like "What is the preamble of Pakistan Constitution?" or "What are the three ingredients for grant of temporary injunction" should not be set. On the contrary, if questions like "The preamble of the Pakistan Constitution provides the basis of the Constitution. Discuss" or "Whether the three ingredients required for the grant of temporary injunctions provide satisfactory guidelines for the Court to come to a correct tentative conclusion" are set, the students will be encouraged to employ their own mental faculties and critical approach. Also issue-spotters or problem-type questions are to be encouraged. If the standard of examinations are so raised then even' examinations can be allowed to be an open book even which may also to a great extent diminish the anathema of cheating and unfair practices, which are usually complained of. The suggested recommendations are likely to enable the fresh law graduates from our law schools to possess excelling knowledge of law and above all their ability to apply their minds to the practical problems. The prospective employer may also not complain about thorough incompetence of the fresh graduates and may perhaps offer better pay-scales to them. Even if such pay scales are not offered the student is bound to do well in private practice in a very short span of time. Before finally concluding I would take this opportunity to underscore two further points. The first one is that candidates for admissions to the Law Colleges should be expected to have a good proficiency of the English language. The reason for this is quite obvious. The entire legal texts, statutes, books, and case-law are in English. Even the language used by the superior Courts is predominantly English. A student without the requisite proficiency in English cannot comprehend the very basic rules of law, let alone its subtleties and the ability to apply and express them. Secondly, the students should not be allowed to indulge in politics. In this respect, I place reliance upon the decision of the Supreme Court of Pakistan in M. Ismail Qureshi v. M. Awais Qasim 1993 SCMR 1781. I thank you all for being so patient. NOTES [1] See Report of the Omrod Committee on Legal Education, Cmnd. 4595 (1971), Chap. 1. Also see Baker, A.J.: "University College and Legal Education, 1876-1976" in [1977] Current Legal Problems, pp.1-13. [2] See Hunt, A: "The Socio-Logical Movement in Law", 1978 at p.11. [3] "Legal Education and the Public Interest", I Journal of Legal Education, 155, 162 (1948). [4] "Reflections on Legal Education" (1966) 29 MLR 121, 123, 128,129. ***