Bleak House or Great Expectations?

The British legal academy is a very different place from the American law school. The biggest difference is that we teach law to undergraduates—they are the bread and butter of all UK law schools. Everything else we do is based on the foundation of the fact that our core purpose is to teach law to undergrads.

I have been in law school all my adult life. First as an 18-year-old LLB student, then as a Master’s student, then as a (very young) lecturer in law, working my way through the rounds of promotion to become a full professor. For all my teaching career the institutional pressures and priorities that shape the profession have been focused elsewhere than on teaching. My career started at the beginning of the time in the UK when “publish or perish” was the academic trade’s ruling mantra. “The students will look after themselves,” I was told, in my first job. My task was to get my name out there. To publish. Quickly, and as much as possible.

That was thirty years ago—things are tougher now for “early-career researchers” (as we call them). Even if the publishing metrics have moved away from sheer quantity to some measure of quality, in addition to the pressure to publish, there is even more pernicious pressure to obtain competitive funding for your research. And the best funding of all, it appears, is the sort that buys you out of your teaching altogether, so that you can focus exclusively on your research. To my mind it’s a bizarrely twisted way of running higher education—that you are rewarded for not teaching—but mine seems these days to be very much the minority view.

Some colleagues enjoy this system. Many more have no real choice but to play along with it, whether they want to or not. Only a relative few resist. There are many reasons for this, not least that most “early-career researchers” are poorly paid and easily exploited. To secure for themselves the promotion that will get them a better deal, they have little option but to please their managers. British university managers are addicted to and obsessed by the multiple league tables that seek to rank UK universities according to an array of metrics. To win the grant that pushes your institution up a league table, by demonstrating you can attract significant external research funding, is the surest route to preferment.

But amongst the reasons why this model endures is the deep-seated and long-standing disdain so many academics semi-secretly have for undergraduate teaching. “Teaching is the price we pay for a research career.” “Teaching is for high schools and colleges and polytechnics, not for proper academics.” At university, particularly at an elite university, “the students will look after themselves.” There is a great deal of this sort of thing whispered on campus. (Of course, there are exceptions: I know I’m painting with a broad brush.)

One of the measures by which research is now assessed in the UK is “impact.” When universities are part-funded by the taxpayer, perhaps it is understandable that government will want to ensure that academics engage in socially useful research—research that has some sort of impact off campus (out there in the real world) as well as on it. But, seriously folks, the idea that law professors can ever have more impact via the obscure pages of the law reviews than they can in the classroom is for the birds. If you really care about the impact we can have as law professors—and, as it happens, I think we should—I would not bother too much about what we write. I would worry, instead, about what and how we teach.

Almost all law schools in the UK order the core curriculum in broadly the same way. Typically, first-years encounter courses in constitutional law, criminal law, the legal system, the law of property, and private law (the law of obligations—contract and tort). Second-years move on to administrative law, the law of trusts, and perhaps some international law or legal theory. Thereafter, there is more choice—some courses will introduce students to other areas of the law (intellectual property or family law, company law or medical law, for example) and others will return to aspects of the core curriculum and offer more advanced examination of discrete areas—I teach courses on comparative constitutional rights, for example, and on the law of free speech (these courses are not available to first- or second-year students).

What is it about the law that is “natural”—and what is it that is the mere product of mankind’s expedient accommodation with itself for the time being?

As a professor of constitutional law, I also run my law school’s compulsory first-year LLB course on that subject. In it, I try to do two main things. First, I give my students a sense of what the key rules and principles are of UK constitutional law, where they come from, why we have them, what they mean, and what their main strengths and weaknesses might be. Second, I give my students the opportunity to practise and (hopefully) enhance their key legal skills. How to read a case—and how to use the authority of case law in the construction of legal argument. How to read, navigate, and make sense of a statute. And how to apply rules of constitutional law in the tackling of “problem questions,” in which students are required to advise imaginary parties of their legal rights and obligations.

If those are the twin functions of the course, along the way I encourage the students to think about two big and overarching questions—questions which admit of few answers, perhaps, but which all reflective and self-reflective lawyers must nonetheless ponder. First, what is the distinctive contribution the law makes? Constitutions—like families and corporations—are legal constructs, but not exclusively so. As well as being creatures of the law, constitutions are political animals, families are social beings, and corporations are economic entities. Political claims about what our constitutional arrangements should be are very different from legal claims about what our constitutional law is—yet identifying where the line is drawn between these two sorts of claim is not easy, particularly when (as occurs in both the US and the UK) those whose task it is to draw the line are as often as not motivated by their own politics, political preferences, and political aspirations. Is there such a thing as a constitutional law that rises “above politics” or does all law—even constitutional law—collapse into politics in the end?

Second, and related, is the question of why things are as they are. Some elements of constitutional law seem almost inevitable (or “natural,” or “God-given”). That there are courts, governments, and legislatures, for example, seems everywhere to be true. But what is the relationship between these various sorts of institutions, and what then is the relationship between such institutions and us—the governed? These matters vary hugely both over time and between different countries; they are altogether more contestable. And this, I think, is the real trick of legal learning—its beating heart—to know when, despite all the apparently timeless authority and weight of the law, it really does not have to be like this. What is it about the law that is “natural”—and what is it that is the mere product of mankind’s expedient accommodation with itself for the time being? What is it we should revere and be awed by, and what is it we should feel is ours to own, to reform, and to change? No first-year law school course can hope to answer that question, but to introduce it, at least, to the minds of one’s students—surely we can aspire to that?

One would hope so. Yet the realisation of that aspiration is not made any easier by law’s location on the modern-day British campus. Back in the day, universities were divided into “faculties” and sub-divided further into departments. Law was almost always its own faculty. Of late, it has become modish instead to divide universities into super-sized “colleges” each with multiple “schools.” This is to aid the “inter-disciplinarity” of our teaching and learning, or so we are told. Law is almost always given the wrong home in this structure. Seen as a social science it is placed alongside politics and economics. This has become the norm, but it is a mistake. Law’s closest neighbours are not the social sciences. They are, rather, the other esteemed disciplines in which meaning is derived from and ascribed to texts—history, above all, followed by philosophy and literature. To pick up my broadest of brushes, again, social scientists are discoverers—people who try to find things out. Lawyers, like historians and philosophers, tend not to be. In the main they are, instead, interpreters, battling not over data but over authority.

In Professor Smith’s view, which I share, legal education has a bleak future if the study of law is reduced to instrumental value, as if law can be seen only ever as a technique of power, always as a mere tool of social order. Law is these things. But, understood fully, it is never only these things. It is also immanence, justice, nobility, honour. Law schools do not have to be bleak houses. On the contrary, they can—and should—both accommodate and aspire to build great expectations. They—we—will be better able to achieve this, however, only when two moves are made. First, we must upend the model in which teaching is but the poor relation to research. And second, we must understand and approach the law not as a social science but as what it is, an elemental component of our humanity, just like history and philosophy and literature.


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