The teaching of law to non-lawyers

• Author: Robert J. Morris
• Position: Department of Law, University of Hong Kong, Hong Kong, People's Republic of China

Introduction

If we think of “lawyer” as a verb form (as in “She lawyers in Hong Kong,” “knowing how to lawyer,” and “lawyering is difficult”), it is common knowledge that the traditional law school did not do much to teach its graduates what to do ( Morris, 2003 , 2005, 2007 ). The old law school was designed solely to teach students how to “think like a lawyer” rather than to acquire the practice skills they would need to be(come) a lawyer – to act like a lawyer, to do lawyering, to conduct the daily work of “lawyering” – skills that usually come through practice, apprenticeship, and clerking – on-the-job-training (OJT) ( Gold, 1991 ; Wong, 2006 ; Chow et al., 2006 ). Overwhelmingly, the model for the desired outcome of legal education was for the trainee to be able to demonstrate in a written examination that the student could manipulate the legal vocabulary, symbols, and thought processes that demonstrated this one skill ( Vickers, 2005 ). So long as that was the “outcome” of outcome-based education (OBE), or the “criterion” of criterion-referenced assessment (CRA), then legal education succeeded well enough, with some students measuring up so well as to join the law review, get their license to practise, and work in a top firm or government office where they would learn “doing like a lawyer.” Clearly this is not enough in the modern world, and it is not the direction of modern education – legal or otherwise. Globalization in the post-World Trade Organization world compels the conclusion that every student in every professional track (doctors, dentists, broadcasters, astrophysicists, pilots, bankers, mechanics) must study the law relevant to that profession. Doing this would reduce malpractice, malpractice lawsuits, and the costs of malpractice insurance. The law-for-non-law-students has adapted to include “practica” and laboratory courses beyond theory ( Ontario Professional Engineers, 2010 ; Cownie, 2000 ). The capability of graduates in such programmemes can be stated, measured, and quantified comparatively easily ( Wu et al., 2004 ; Chan and Yung, 2004 ).

This follows the trend in the law schools themselves. Recently, there is greater and greater emphasis not only on in-school practica, but also on student learning outside the school ( Schwartz, 2001 ), and on new theories and paradigms ( Chynoweth, 2000a, b ). And now some innovative non-law schools combine their professional degrees with a law degree in double-degree programmes. This is at once a syllabus of the programme and its mission statement. But double-degree programmes presume a law component in which students know and want legal knowledge. What if anything becomes of these desiderata when the students in question are in other disciplines alone – are not students in the law school or in combined degrees, are not on the law track to graduation, and do not intend to become practicing lawyers after graduation? ( Tyler, 1995 ) – when, in other words, we teach “specialisms to non-specialists”? ( Ward and Salter, 1990 ) Do the goals, paradigms, and tools change? ( Allen, 2005b ; Soetendorp and Byles, 2000 ). Ward and Salter (1990, p. 226 , original emphasis) have argued:

[I]n general where specialist subject matter is “translated” into a version designed for non-specialist consumption, then the translated version should be regarded as something sui generis, to be critically assessed on its own merits. This exercise will often testify […] that something (albeit of a detrimental nature) may be gained as well as lost in the translation process.

If such a version of legal studies is sui generis, and if OBE and CRA include practical skills beyond “mere” knowledge and understanding ( Allen, 2005a ), how can the academy demonstrate that it is achieving any such skills? ( Quality Assurance Council of the HKSAR University Grants Committee (UGC), 2009 ). Do any such skills even exist? Does the study of law retain any inherent importance in or out of the law school? If we carefully adapt the educational taxonomy of Bloom (1956) that learning has three domains (cognitive, affective, and psychomotor), how do these apply if at all in law-school and non-law-school legal education? ( Kennedy, 2005 ; Munro, 2000 ; Lo, 2006 ) The proliferation of courses and programmes in law for non-law students attests to a growing consensus that they are important – even necessary ( Christudason, 2006 ). Even so, their proponents have not always clearly articulated why they are important or necessary. They have not always clearly articulated their mission – the first and fundamental step that underlies all the rest. Nor have they always clearly articulated what bearing such courses have, or must take, from the law-school curriculum, if at all ( Chan et al., 2002 ; Morris, 2008 ). Hence, faculties and curricula committees are not always sure what to do with non-law school law courses. Because law and legal thinking remain a form of “higher-order thinking” ( Tan, 2005 ), whether taught in the legal academy or another academy, these concerns are fundamental to our understanding of the pedagogy involved and the tools required ( Jarvis et al., 1998 ).

Law in the law school: the point of departure

At the outset it is important to note some things about in-school, pedagogical, doctrinal law that are ever and always true but that may nevertheless be insufficient or misplaced in the new paradigms. The subject of law, of taught law, is not wholly a creature of, nor is it altogether malleable by, the academy or the profession. In common-law systems, “law” is what the courts and the legislatures do, or rather what they create ( Morris et al., 2000 ). It comes to the academy and the profession in this sense pre-packaged ( Wesley-Smith, 1998 ). This fact substantially limits what the law school and the profession can do with it, and it is something less than what they can do with many other subjects and disciplines. We comment on the law and argue about it in law reviews and books, and we sometimes have input regarding it in the legislatures and the courts, but we do not make the law. In the classroom we must teach it as it is at the moment. If there is any room for creativity or autonomy, it is in our pedagogical methods, not our subject ( Josephson, 1984 ). These realities have certain implications for any a priori determination of criteria and outcomes, as well as for the scope of possibilities for curriculum revision. In sum, we are not as much at liberty to engage in any of these activities as many other disciplines may be. And even this generalization may be in the process of becoming less true as other disciplines come more and more to be controlled themselves by positive law and case decisions.

Law school has its own built-in rationale and motivation: its graduates intend to become some sort of legal practitioners. They must learn to be lawyers: to think like lawyers, and to do like lawyers. This is true whether the law school is a traditional “one-dimensional approach to legal education” or has modernized its curriculum to include such things as practica, clinics, symposia, and so on ( Solomon, 1992 ). It is even true where the law school no longer has a physical campus but exists in cyberspace ( Rosen, 2001 ). Thus, in the law school, OBE and the concomitant CRA are obvious and easy to state, measure, and quantify – even though they may differ from school to school. They are driven and defined by the actual end-game necessity for the student to graduate, pass some form of professional qualifying examination, and practise some form of law. Teaching, learning, and doing are conceived of as a loop.

Law in the non-law school

What of the graduate who is not set to become a legal professional but who is required to study a large cohort of legal subjects as part of professional schooling? Do the above analyses and criteria apply? For students not in law school whose curriculum is some other subject to which law is merely another component, these ideas are far from obvious. Such students do not intend to graduate as law students, pass any law-related examinations, or practise law. Their degrees are in medicine, business, construction, surveying, media broadcasting, cooking – anything other than law per se. Furthermore, we do not want them attempting in any way to practise law as if they were mini-solicitors. All jurisdictions rightly have laws that prohibit the “unauthorized practice of law” – a concern that is especially salient in the globalized cross-jurisdictional world (the Hong Kong Barristers (Qualification) Rules)¹. What role then, if any, do work-integrated education (WIE), OBE, and CRA have in their educational programme? What simulation are they to undertake? Munro (2000, p. 7) points out:

It is common in undergraduate education for students to perform a variety of tasks, each of which might in some way be evaluated. For example, students in a business course may take weekly quizzes, make a classroom presentation, work with a partner to formulate a business plan, write a report, and take a final exam. An architecture student may submit multiple drawings, design and build models, make a classroom presentation, and take a final exam. In those cases, the students' final grades in the course represent a synthesis of the multiple evaluations of their performance.

If both the business student and the architecture student are required to study the law of their professions ( Corbin, 2002 ; Woodcock, 1989 ; Ridley, 1994 ), what will they do to show a “synthesis of the multiple evaluations of their performance”? Where will their respective faculty's mission statements reflect this, and how...