The LLB as a liberal degree? A re-assessment from an historical perspective

Abstract

Despite the major recent expansion of law degrees in England and Wales and their accepted place as the ‘academic stage’ of a lawyer's education, important questions remain or are even intensifying over their nature and content. It is said that there is an increasing urgency to develop broader and more liberal degrees, not least to respond to changes in the delivery of legal services and expertise but also societal imperatives. This article argues, through an exploration of historical data, especially from the nineteenth century, that the system of legal education that was developed and embedded during that period inevitably makes liberalising law degrees both problematic and challenging.

Acknowledgements

I should like to express my thanks to two people, in particular. The first is Graeme Broadbent from Kingston University who has made many insightful comments on earlier drafts of this article and with whom I have had many very helpful discussions. The second is David Sugarman from Lancaster University who gave generously of his time and expertise and provided much help on source materials. I should also like to express my thanks to other members of the Legal Education Research Network (LERN) with whom I have discussed this and other related areas of my work on the history of legal education.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

[1] Much of the primary data and other source materials relied on in this article are taken from an unpublished M. Phil. thesis on “The Education of Solicitors, 1825–1914” for Kings College, and the Institute of Education, University of London.

[2] Ormrod Report (1971) Cmnd 4595.

[3] Ibid. See also the records of the National Council for Academic Awards (CNAA) for 1965–1993. It made over 1.3 million awards involving 140 institutions, though it is unclear regarding the numbers of law graduates. Data can be accessed at the Modern Records Centre, University of Warwick. For more recent data on law degree student numbers and information about law courses and law schools more generally, see the three surveys of law schools, conducted by Professor Phil Harris between 1991 and 2004. See P. Harris & S. Beinart, A survey of law schools in the United Kingdom, 2004 (2005) 39 The Law Teacher 299. A useful source for basic statistical data is the Higher Education Statistics Agency (HESA). This indicates that after many years of sustained growth in undergraduate numbers, the last year (2013–14) has seen a decline of around 5% in full-time law undergraduate numbers from 2009–10 (11,325 to 10,110), which has prompted some of the debate on the future of the law degree. It should be noted that the HESA data do not include the private providers of law degrees.

[4] P. Leighton, T. Mortimer & N. Whatley, Today's Law Teachers: Lawyers or Academics? (London, Cavendish Publishing, 1995). To identify the main features and trends in law school provision, the three ‘Harris' surveys are worth consideration, along with the earlier Wilson and Marsh surveys. See J. Wilson, A first survey of legal education in the united kingdom (1966) Journal of the Society of Public Teachers of Law 9; J. Wilson & S. Marsh, A second survey of legal education (1975) Journal of the Society of Public Teachers of Law 18; J. Wilson, A third survey of legal education in the United Kingdom (1993) Legal Studies 13; P. Harris, S. Bellerby, P. Leighton & J. Hodgson, A Survey of Law Teaching (London, Sweet and Maxwell and the Association of Law Teachers, 1993); P. Harris & M. Jones, A survey of law schools in the United Kingdom (1997) The Law Teacher 31; see Harris & Beinart, op. cit. for the 2004 survey.

[5] In mind here is the setting up and expansion so as to provide national coverage by providers such as BPP University Law School, founded in 1992 with six campuses and the University of Law, with seven, whose origins go back to 1876. There are also a considerable number of smaller, both public and private providers who offer law degrees validated by universities, including London University. The London University External Degree dates from 1858 and currently students are taught in 130 affiliated colleges world-wide. Around 2,000 students achieve the LLB each year .It remains difficult to accurately estimate total student numbers studying for the LLB. It might be noted that although some of the major private providers initially only offered preparation for the Bar and the Law Society, they now generally offer the full range of law programmes, including Masters degrees. Some of the private providers highlight that they are explicitly preparing law undergraduates for a career in the legal profession.

[6] The Report of the Select Committee on Legal Education (1846) Parliamentary Papers X.

[7] For an interesting critique of Ormrod, see, T. Mungham, English legal education: a commentary on the Ormrod Report (1972) 7 Valparaiso University Law Review 87. He notes the limited contributions made by law teachers, observing what appeared to be “their complete sense of inferiority”.

[8] For a contemporary commentary see R. Grimes, The ACLEC Report—meeting legal educational needs in the 21st century (1996) Legal Education Review 12; P. Leighton, Comments on the ACLEC Report (1996) 30 The Law Teacher 201. Another useful source published contemporaneously with the ACLEC Report is O. Kahn-Freund, Reflections on legal education (1996) 29 Modern Law Review 121. Another excellent source is R. Hepple, The renewal of the liberal law degree (1996) 55(3) Cambridge Law Journal 470.

[9] Perhaps the most enduring and at the time, radical, contribution to the debate is W. Twining, Pericles and the plumber (1967) 82 Law Quarterly Review 83. In discussing law's suitability as an academic subject, he referred to critics of legal education stating it to be “narrow-minded, a remote form of life, chauvinistic, educationally unsophisticated and intellectually sterile” (at p. 92).

[10] Anthony Bradney has spearheaded the debates on the liberal law degree, arguing strongly for law as a topic of liberal study. For example, Anthony Bradney, The Liberal Law School in the Twenty-first Century (Oxford, Hart Publishing, 2003). See also Anthony Bradney, Aristocratic values, the liberal law school and the modern lawyer (2011) The Web Journal of Current Legal Issues. One might refer to the debates around H. Hart, The Concept of Law (Oxford, Oxford University Press, 1961), especially the contribution by A. Simpson, Reflections on the Concept of Law (Oxford, Oxford University Press, 2011), themselves considered by D. Sugarman, Brian Simpson's approach to legal scholarship and the significance of the reflections on the concept of law (2012) 3 Transnational Legal Theory 112. See also A. Simpson, Rise and fall of the legal treatise: legal principles and the forms of legal literature (1981) 48 University of Chicago Law Review 632. One might also refer to the debates and policy developments that have followed the ILEX Professional Services, Bar Standards Board and the Solicitors Regulation Authority Report, Setting Standards: The Future of Legal Services Education and Training Regulation in England and Wales (2013). Although the main focus of the research and the report is professional training for the legal profession, it is inevitable that the role, nature and content of the law degree be seen as of great significance.

[11] A. V. Dicey, Can English Law be Taught at the Universities? (London, Macmillan, 1883).

[12] D. Sugarman, Making a respected gentleman out of law professionals: a commentary on Albert Venn Dicey Can English Law be Taught at the Universities? (2011) Kultur und Beruf in Europa 16.

[13] See Sugarman's powerful critique of this period in D. Sugarman, Legal theory, the common law mind and the making of the textbook tradition, in: W. Twining (Ed.) Legal Theory and the Common Law (Oxford, Blackwell, 1986).

[14] As a testimony to the intellect and influence of the jurists, it might be noted that some of their texts have survived to today, albeit with different authors! Anson's Law of Contract, first published in 1879, is today in its 29th edition; Pollock on Torts, first published in 1887, was in its 15th edition in 1951 and Clerk and Lindsell's Torts is today in its 21st edition. It is important to note that many of the authors of these prestigious texts themselves recognised the need to make them more accessible for students. For example, J. Salmond, A Summary of the Law of Torts (1912). Sometimes others wrote ‘cut down’ versions. For example, J. Mannooch, An Analysis of Sir Frederick Pollock's Law of Torts for Students (1911). for further consideration of the contribution of the jurists, see, R. Cosgrove, Scholars of the Law: English Jurisprudence from Blackstone to Hart (New York, New York University Press, 1996); N. Duxbury, Frederick Pollock and the English Juristic Tradition (Oxford, Oxford University Press, 2004); N. Lacey, A Life of HLA Hart: The Nightmare and the Noble Dream (Oxford, Oxford University Press, 2004). For a recent critique, see S. Bartie, The lingering core of legal scholarship (2010) 30(2) Legal Studies 345. Another interesting critique is from B. Tamana, Failing Law Schools (Chicago, Chicago University Press, 2012).

[15] There is a rich literature on the Inns of Court and those of Chancery. Of particular interest is J. Baker, The Third University of England: The Inns of Court and the Common Law Tradition (London, Seldon Society, 1990). The Inns of Chancery have received less attention, but see D. Bland, A Bibliography of the Inns of Court and Chancery (London, Seldon Society, 1965). The Chancery Inns were smaller Inns populated mainly by attorneys and solicitors and each Inn was associated with an Inn of Court. See W. Douthwaite, Staple Inn (1887); F. Day, Staple Inn (1887) and J. Ringrose, The Inns of Chancery (1909).

[16] J. Baker, Readings and Moots at the Inns of Court (London, Selden Society, 1990); D. Sugarman, A special relationship: American influences on English legal education 1870–1965 (2013) 18 International Journal of the Legal Profession 161.

[17] Bracton Notebook (A collection of cases from the thirteenth century), edited and translated by S. Thorne (Cambridge, MA and London, Harvard University Press and Selden Society, 1968–).

[18] For a nineteenth-century account of life as an apprentice see The Diary of Thomas Loughborough, 1832–4, Law Society Collection.

[19] Blackstone, Commentaries on the Laws of England, 2001 edn edited by W. Morrison (London, Cavendish Publishing, 2001).

[20] S. Milsom, Historical Foundations of the Common Law (London, Butterworths, 1969) at p. xii, Introduction. The whole of the Introduction is well worth reading as an overview not only of the evolution of law itself but of institutional matters and responses to it.

[21] See, for example, Records of Barnard's Inn. 1621–1867 (Grays Inn Collection, 1960); Pension Book of Clement's Inn (Selden Society).

[22] The Law Society probably emerged from the Society of Gentlemen Practisers in the Courts of Law and Equity which had been founded in 1739 and was based in London. The Law Society had a small membership (only 224 in 1827 and by 1832 only 838). Although its membership grew to around 1,600 by 1858, it should be noted that only 327 were drawn from outside London. The various Law Societies or Associations in the major cities had higher membership and operated in a different way from the (London) Law Society. They were more closely integrated with professional and governmental bodies and were therefore strongly community based. Indeed, displeasure with the Law Society led in 1847 to the setting up of the Metropolitan and Provincial Law Association (MPLA). It was wound up in 1895 following calls for one voice to represent the profession. Membership of the Law Society then grew considerably. For an excellent account of these developments and the role the profession was playing in legal developments more generally, see D. Sugarman, Bourgeois collectivism, professional power and the boundaries of the state: the private and public life of the law society, 1825–1914 (1996) 3 International Journal of the Legal Profession 81. Another way of considering the overall shape and representation of the solicitors' profession is to explore the role of the local law societies and associations. Membership was voluntary and it is clear from correspondence to the legal press that many outside London saw the Law Society as elite, remote and too London-centric. For example, of the 237 solicitors in Manchester in 1865 only seven had joined the Law Society; as late as 1895 only two out of 93 Leeds solicitors were members. There were, of course, many smaller towns where the Law Society had no members and perhaps the local solicitors belonged to no professional association. This position was in marked contrast to the Bar, where membership of an Inn was compulsory.

[23] S. Stephen, Commentaries on the Law of England (London, Butterworths, 1868).

[24] A. Gibson & A. Weldon, Law Notes, (London).

[25] See, for example, the newspaper article: Good degree awards not always in line with intake, Times Higher Education (17 April 2014) at p. 6.

[26] See generally, Volumes 11 and 12 (1835–6) Legal Observer.

[27] D. Winstanley, Early Victorian Cambridge (1940), at p. 3. The 1846 Select Committee on Legal Education was very scathing about the contribution of universities at the time. For a more recent account, see P. Maharg, Transforming Legal Education (Aldershot, Ashgate, 2007).

[28] One correspondent to the Law Times (Vol.112, 1901–2) at p. 486, stated: “You could pass the London LLB examinations on work you did for the Intermediate Law Society Examination”. This may not have been accurate, but it was a frequently expressed view.

[29] For further information in the activities of these organisations, see the annual reports of, say, the Liverpool Board of Legal Studies, and the Wales Board of Legal Studies.

[30] See, for example, the Report of the Examination Committee on these developments in the Law Society's Annual Report for 1899. By this date all efforts to develop legislation to provide an integrated system of legal education had failed.

[31] One of the few sources is R. Kersley, Gibsons 1876–1962; A Chapter in Legal Education (1973).

[32] Marketing information by the firm; see Kersley, op. cit., p. 113.

[33] 1628–1644.

[34] A. Thomas, Littleton's Tenures (1577, Rychard Tottyt).

[35] Jacob’s Attorney’s Practise (Nutt and Gosling, 1837). For an earlier example of this type of publication, see Bohun, Practising Attorney or Layer’s Office (Crockat and Worrall, 1728).

[36] J. Chitty, General Practice (1837 edition).

[37] Comments to Vol. 10 (1835) Legal Observer 4.

[38] Many were on legal history, for example, F. Pollock & F. Maitland, A History of English Law (1898); F. Pollock, English Law before the Conquest (1899); and H. Maine, Ancient Law (1861).

[39] J. Smith, Law of Contracts (Stevens and Norton, 1846).

[40] J. (Josiah) Smith, Compendium of the Law (Stevens and Norton).

[41] J. Smith, Leading Cases (Stevens and Norton).

[42] Law Magazine 1829 onwards. The publisher up to 1856 was W. Benning and from the Butterworths. The quote is from the June 12, 1845.

[43] J. Shirley, Leading Cases.

[44] See a correspondent to Law Notes vol. 10 (1891), p. 320.