Negative perceptions

Lawyers traditionally have to deal with negative public perceptions of them as individuals and their profession as a whole. So, for example, Gardam in her novel Old Filth has a teacher of the hero of the book say:

But such negative perceptions are not confined to practitioners. It is also true of the Law student. So, in the film Legally Blonde the father of the protagonist Elle Woods says:

But even more damning is the perception that the study of Law is dull, derived in part, perhaps, from the aphorism of Aristotle that ‘The Law is reason free from passion’.

But all these perceptions of Law and lawyers are misconceived. Lawyers are logical, but do require brains and must be imaginative. Law students do need to be serious, but that does not require them to be boring (and many cannot be considered to be ugly). But most importantly, whilst the Law is reason, it is actually full of passion. It is only when the passion is removed that the Law and lawyers become dull, rigid and lacking in creativity.

Law as an academic discipline

Any Law student who wishes to become a practising lawyer must study as a minimum the so-called ‘Foundations of legal knowledge’ as identified by the professions in their Joint Statement.Footnote ¹ These foundation subjects are:

1. (i) Public Law (Constitutional, Administrative, Human Rights);

2. (ii) Law of the European Union;

3. (iii) Criminal Law;

4. (iv) Obligations (Contract, Restitution and Tort);

5. (v) Property Law;

6. (vi) Equity and the Law of Trusts.

Students are also expected to have appropriate expertise in legal research skills, the English Legal System and one other area of legal study.

In addition, Law courses must satisfy requirements involving the transmission of knowledge and the development of transferable skills.

Under the heading of ‘knowledge’ students are expected to have acquired knowledge and understanding of the fundamental doctrines and principles which underpin the law of England and Wales, especially as regards the foundation subjects. They are also expected to acquire a basic knowledge of the sources of law and how it is made and developed, legal institutions and legal personnel; knowledge and understanding of legal concepts, values, principles and rules; intellectual and practical skills to enable them to research from primary sources, to analyse and to apply the law to solve legal problems; and oral and written communication skills. It is unclear why some of these skills are placed under the heading of knowledge rather than as general transferable skills.

The general transferable skills which Law students are expected to acquire include the ability to apply knowledge to complex situations, to recognise alternative conclusions, to select key relevant issues for research, to use standard paper and electronic resources, to make reasoned judgments, to use English language and legal terminology with care and accuracy, to search on websites efficiently, to use email and to produce word-processed text.

Whilst all of this is admirable and deliverable, nothing is said about how students acquire this knowledge and these skills. Some will be taught through particular training sessions, especially as regards the general transferable skills, but for the most part students are expected to acquire legal knowledge either through lectures or, primarily, by reading textbooks, articles, cases, statutes and regulations; writing; and discussing and mooting the Law.

Any bureaucratic statement of the aims and objectives of legal education will inevitably sound dull. The requirements are identified; the boxes need to be ticked. But the impression is that the study of Law at the academic stage is simply a means to an end, namely becoming a member of the legal profession and that study of the Law is about knowing facts. This perception is increasingly carried through to legal publishing and the apparent aims of textbook writers. There are a growing number of books which convey the impression that the Law is definite, that there is always a right answer to a particular problem and that the study of Law is about knowing what the Law is rather than whether what the Law does is right. This is the multiple choice, memory test approach to the teaching of Law. This reinforces all the negative impressions about the nature of the Law, the study of Law and becoming a lawyer. According to this view, the Law is reason and there is no place for passion; the Law is boring.

But that is not my experience of the study of Law and that is not the experience of many of my colleagues, whether as teachers or researchers. Our approach to the study of Law is passionate; getting the right answer for the right reason matters; the proper classification of the Law matters; the clarity of analysis matters; the Rule of Law matters. If we can imbue Law students with that sense of passion, then the study of Law opens up as the exciting, dynamic and vital subject that it is. The only way that this sense of passion can be developed is by focusing on the one approach to legal education which is conspicuous by its absence in the Joint Statement: namely, the importance of thinking, analytically and critically, but deeply and never accepting anything as given. That is how legal researchers approach their study of the Law; that is how Law students need to approach their study of the Law.

What do legal researchers do?

How lawyers should think about the Law is illustrated by considering how academic lawyers approach the research of their subject. Scientists tend to research by experiment and investigation to explain and predict how the natural world works. But law is artificially constructed and cannot be researched in the same way. The raw materials are cases and statutes rather than elements and molecules and there are no laboratories, just libraries and the internet. The methodology of legal research does, however, have much in common with scientific research. Indeed, the study of law is sometimes described as legal science.

The nature of legal research depends on the objectives of the researcher. The object may be to investigate the policy which the law should be seeking to implement. This type of research tends to be more theoretical and may require engagement with other disciplines, such as sociology, politics, economics and philosophy. Other legal researchers may be more concerned with a historical, or a comparative, or a philosophical approach to the Law. But a different type of research focuses on the content of the legal rules themselves; working out what the law says on a particular issue and why it says it. This is doctrinal research.

If we are trying to work out what the law says on a particular point there are two distinct approaches which can be adopted. One is pragmatic and involves the researcher surveying the law on a particular topic and concluding from this what the rules are. The other approach involves the researcher seeking to identify the principles which underpin a mass of rules to explain the function of those rules. This is done through the recognition of maxims of the law which are generalisations and distillations of complex bodies of law. This process of generalisation is a bit like looking at a television screen. If you get very close to the screen you can see loads of individual pixels, but you cannot make out a picture. For that, you need to step back, to put the pixels together to see the big picture. In the same way, the search for principle requires the researcher to step back to see the bigger picture. This process of identifying principles makes the study of law similar to the study of maths. Mathematicians try to identify general principles which accurately explain specific phenemona. Lawyers also need constantly to check the principle which they have identified to ensure that it accurately explains the detailed rules. If it does not, the principle may need to be qualified by the creation of another subordinate principle or rejected.

The doctrinal researcher who searches for principle is faced with a dilemma as to whether a ‘top down’ or ‘bottom up’ approach should be adopted. ‘Top down’ research starts with the identification of a principle and then considers whether the case law is consistent with it. If it is not, the law may be considered to be wrong. ‘Bottom up’ research, on the other hand, seeks to identify the principle from the decided cases. This approach may still result in criticism of the law, but it shows greater respect for the decided cases. The significance of ‘bottom up’ research to the evolution of the law is illustrated by two significant developments in the law of obligations in the twentieth century. One concerns the creation of the modern tort of negligence. That body of law developed in the nineteenth century through the recognition of many different rules to determine when the defendant was liable to compensate the claimant for harm suffered as a result of the defendant's negligence. In Donoghue v Stevenson Footnote ² (the case of the snail in the ginger beer bottle) the House of Lords examined all of these different rules and synthesised them to create a new general tort of negligence which has been the touchstone against which all claims in negligence have subsequently been determined. Another example is the law of unjust enrichment. For over 200 years the law has recognised disparate situations where the defendant is liable to pay something back to the claimant. In Lipkin Gorman (a firm) v Karpnale Ltd. Footnote ³ the House of Lords recognised that all of these situations could be explained by the unjust enrichment principle. This principle enabled lawyers to have a much better understanding of how the law operated, what needed to be proved and what its underlying rationale was.

The methodology of the researcher who adopts a pragmatic approach is essentially to find a solution in the law to a particular problem. So, for example, if you enter into a contract to buy a vase from somebody and you pay the full purchase price in advance, but the vendor does not deliver the vase to you, you will want to recover your money. There are a number of questions which need to be considered before we can determine whether the money can be recovered. First, what is the cause of action on which your claim can be based and what do you need to prove to establish that cause of action? Secondly, does the defendant have any defences to your claim? Finally, if you can establish the cause of action and there are no defences, what remedy will be available to you? The answers to these questions will depend on careful consideration of what the cases and relevant statutes say. If the solution is not clear, or if the matter has never been considered by the courts before, the researcher will need to suggest their own solution.

If, however, the same problem is viewed from the perspective of a principled analysis of the law, different questions would be asked. The starting point will be to determine what the relevant cases decide. After that the researcher will determine whether any relevant principles can be distilled from those cases, then identify the policy which underpins the principle and finally consider whether the law is right. If the principle does not accurately reflect the policy then the law may be wrong and the researcher will consider other alternative solutions to the problem. This is a much more academic approach to doctrinal research, since it looks beyond the mere solution of the problem to the identification of a defensible rationale which underpins the detailed rules.

Getting law students to think like lawyers

At the heart of legal education is the need to get Law students to think like lawyers. At one very basic level this means that Law students need to think like practising lawyers in that they need to be able to apply the law to real problems, in the same way that a doctor can diagnose a medical ailment. But the Law student needs to do much more than that. In the same way that the legal researcher needs to think more deeply and more critically, this is also what is expected of Law students.

Six modes of thinking can be identified:

1. (i) Describing the Law. Law students need to have a good understanding of legal rules. In the same way that a doctor needs to know all the different parts of the body, so too the Law student needs to know the key legal rules in particular subjects.

2. (ii) Applying the law. Law students need to be able to dissect a problem, to see what the relevant issues are, to determine what legal rules may be relevant and then determine how they are applied and with what result. This may require them to identify a rule from a particular case and then consider whether it is actually applicable or whether it should be distinguished. This requires careful analysis of the ambit of the particular rule.

3. (iii) Interpretation of the law. Often the law is not clear and the Law student needs to be able to interpret the law carefully to determine meaning. This might be a difficult process depending on the nature of the issue. The relevant law might be statutory and may be easy to interpret, but where the statute is ambiguous it will be necessary to consider any decisions of judges which have sought to resolve the ambiguity and to identify principles of statutory construction. In other areas there may be no relevant statute at all. Instead, the researcher will only have recourse to judicial decisions which may be contradictory or may not provide a complete answer to the problem. Reading a case is a complex skill which takes time to hone. If the case is from an appellate court there may be a number of judgments which are contradictory. It will then be necessary to determine which judgments constitute the majority, which dicta form part of the ratio of the case and what is obiter.

4. (iv) Imagination. Although imagination might not be considered to be a relevant thinking skill, it is vital to the study of the Law. The best student and legal researcher is the one who is able to make connections between different parts of the law or who is able to approach a legal problem from a different perspective. This creative skill is also of profound significance in practice.

5. (v) Generalisation. Whilst the search for principle is an important objective for the legal researcher, it is also significant to the Law student who is faced with a mass of rules and materials and who needs to find some way of understanding what is going on. The only way that this can be achieved is by seeking to distil from the mass of rules generalised principles which explain the aims and objectives of those rules.

6. (vi) Identification of the policy underpinning the rule. Finally, Law students are not expected to accept the law as it is without challenge. They need to consider all the time whether the law is acceptable and, if it is found wanting, make suggestions as to alternative solutions. But they need to develop the skills and techniques to be able to criticise the law. One method is by identifying the underlying principles and then consider whether particular rules are consistent with those principles. But they also need to identify the policy which underpins the law. This will require them to consider wider political, economic and social objectives.

An example of thinking about law

It is all very well to identify these six levels of thinking about the Law. How do these modes of thinking actually operate in practice? This can be illustrated by the following example:

In considering this problem it is first necessary to identify the key issues and to state the relevant law. It is a crime to commit murder, but that has clearly not been committed because Brenda is unharmed. But there is a crime of attempt which is committed when the defendant does a more than merely preparatory act with an intention to commit a crime.Footnote ⁴ Alan clearly intends to commit murder, but has he done a more than merely preparatory act? What does that mean? Cases have considered the meaning of this phrase and have suggested that it is essentially a factual test which is committed when the defendant is in the process of committing the crime proper. Is that true of Alan? He made the model of his girlfriend and stuck pins into it. What else was there for him to do? Of course, it is not possible to kill somebody by voodoo (it is assumed) and so Alan will never be successful in killing his girlfriend in that way. So is impossibility a defence to an attempt? This is the key issue. The relevant statute says that a person may be guilty of an attempt even though ‘the facts are such that the commission of the offence is impossible.’ But does that cover our case? What is the ‘fact’ that makes the attempt impossible? Is it that voodoo is ineffective? There is no clear answer to this from the decided cases, so it would be appropriate to consider the principles which underpin the crime of attempt, namely that somebody should be punished for wanting to bring about a crime and they do something towards the commission of that offence. That would mean that Alan should indeed be convicted of attempted murder. But can this be justified as a matter of policy? Why does Alan deserve to be punished?

So this absurd hypothetical problem illustrates perfectly the different modes of thinking like a lawyer. Starting with the identification of the issues, the statement of the law, the application of that law to the problem and the identification of further uncertainties, the interpretation of the statute and any relevant cases, the identification of principles and concluding with the assessment of the result against the policy which is being sought to be applied; this is how lawyers need to think about the Law.

The role of legal information managers

Those who are responsible for the provision and management of legal information have an important role to play in assisting, supporting and enabling the Law student to develop all appropriate legal skills, but primarily the ability to think like a lawyer.

But it is important to emphasise that the ability to think like a lawyer is not just developed through the study of academic Law for three years. There are many examples of practising lawyers, including some of the great judges, who did not study Law at University, who have developed their legal skills in practice. But invariably they will have developed academic skills of relevance to their future legal careers by studying other academic disciplines, whether in the Arts or Sciences. Logical analysis, appreciation of evidence and critical thinking cannot just be attained through the study of Law. But it does not follow that the study of Law in its own right is an irrelevance. This is a legitimate subject for academic study, both as regards the contribution that the Law student and the researcher can make to the development of the Law and from the thinking skills which are acquired as Law students and developed as researchers of real benefit to future practitioners of the law and in other careers.

But we have reached a point in legal education where Law students need even more support and guidance to acquire and develop necessary skills. With the ready access to a wide range of material on-line, Law students (as well as researchers, practitioners and judges) can easily become swamped by the quantity of material. All lawyers need help in accessing such material

Hicks has recently recognised:Footnote ⁵

But when confronted with legal materials on the web there is a danger that we are returning to the disorderly mass of the nominate reports. What Law students need is structure. We also need to be aware of the existing skills which students will have when they start their legal studies. Law students can be considered to be ‘net-native’, in that they are used to using the web, but they are not necessarily ‘net-literate’.Footnote ⁶ They need to be taught net literacy skills to be able to maximise the resources available on the web and so support their academic development. The needs of lawyers has been identified by HibbitsFootnote ⁷ who has emphasised that the focus needs to be placed on gathering, filtering, scanning, navigating, comprehension and evaluation of legal materials. All lawyers are in danger of data overload, not helped by the growing tendency of judges to write lengthy judgments, increasingly in complex cases of over 1,000 paragraphs. All lawyers need time to think, rather than desperately searching for more information from disparate sources. Those involved in legal information management can help this, by guiding the use of on-line resources but also ensuring that the traditional Law library remains a well-resourced haven for contemplation of the law. If the Law student is given space and support to think they will become better Law students and, for those who go into the professions, better lawyers. But, most importantly, their passion for the Law can be cultivated, for, after all, Law is reason full of passion.