Legal Education, its Scope
I am profoundly grateful to Dean Hafeezul Rahman for inviting me to inaugurate the Ninth Annual All India Law Teachers' Conference. I confess of having at first a feeling of hesitation in accepting the invitation, for, belonging to the practising branch of lawyers I felt that I could not usefully contribute anything new to the subject of legal education, a subject upon which, all of you, I venture to think, must have bestowed considerable thought. But the importance of the occasion and the cordiality in the letters, which Dean Hafeezul Rahman was good enough to write to me, dispelled any hesitation which I had and made me bold to be with you this morning.
Legal education is not a question which ends with setting up Law Schools at various centres in the country. Various problems arise at once as soon as one begins to think of its role in the national scene, its scope and its obligations. Fortunately, we are not beset, as in England, with the conflict of vested interest between the professional and the academic bodies involved in legal education as legal education has always been entrusted in this country to the universities. Nevertheless, it would be fairly safe to say that until 1947 legal education contented itself in preparing prospective practitioners and did not consider, though it was one of the university faculties, law as one of the sciences. The law colleges which imparted legal teaching were a kind of offshoots, most of which part-time institutions, manned by part-time teachers. Recruited mostly from the members of the bar these teachers regarded their task as more of a sideline or a hobby rather than a serious obligation.
It is not surprising that this was the position. For, the idea that legal education was concerned only with equipping a pupil with the techniques of the trade and the linguistic rules of law which prevailed in England then was consciously or unconsciously transported to this country. The higher judiciary was a field partly reserved for the members of the English bar and partly for the members of the Indian Civil Service. The myth, which existed for a little more than a century. that executive administrators, who had never studied law in any accredited law school nor practised it, could still administer law and justice could only subsist in a country subordinated under a colonial system. The object of setting up law schools was, therefore, to prepare students who would be able to man the net-work of subordinate courts established throughout this vast country. Part-time institutions with part-time teachers were, therefore, adequate to meet the administrative need.
The truth that law and its administration through law courts are dependent upon legal profession from which those who are to conduct law courts would be recruited, and consequently the law schools who prepared them have public duties and responsibilities, appears to be adequately realised for the first time after 1947. Commissions to inquire into university education as well as legal education were set up both at the State and national levels. These commissions reported the unsatisfactory standards of law teaching existing in the majority of the existing law schools. It is a matter of some interest that though the majority of the members of the Law Commission were practitioners, the Commission not only did not insist on mere professional side of legal education but emphasised the necessity of the universities treating in all earnestness law as an academic faculty. The Commission reported:
"The task of promoting research and combining it with teaching which has been advocated in the United States as being within the legitimate sphere of law schools falls in our country probably more appropriately within the scope of the activities of the universities. Our needs in this respect are greater than those of the United States or of England where research projects and programmes in law have a ready been carried on by a number of institutions and have resulted in valuable and learned publications on different legal subjects".
Likewise, the Radhakrishnan Commission had earlier deplored that while in Europe and America legal education had long occupied a high niche among the learned curricula and products of the study of law had frequently risen to positions of distinction in public service or had acquired wide reputation as scholars and legal education was on an elevated plane and teachers of law enjoyed a high respect perhaps as high or higher than those of any other field of instruction, "we have no internationally known expounders of jurisprudence and legal studies". "Law has not become an area of profound scholar; hip and enlightened research". Legal education thus has not suffered, at any rate since the post-independence era, from any clash of conflicting attitudes between the professional and the academic lawyer. On the contrary, official as well as unofficial opinion has consistently regarded law as a full-fledged faculty implying thereby a judicious mixture of teaching and research as its legitimate activities. If legal education has not been lifted to an elevated plane, the responsibility for that lapse must fairly and squarely fall on the universities.
There is yet another fortunate circumstance which may legitimately be observed. The disparity of status between the professional and the academic lawyer of which Harold Laski complained in his correspondence with Holmes does not luckily exist, or, if it does, it does so only with those who are blind and will never be aware of the crucial role that the academic lawyer will in course of time play, so that it can well be disdained. Two factors have principally led to the gradual but perceptible diminution of gap in status between the two branches of lawyers: (1) the widening of the field of law, and (2) the awareness and the consequent questioning of the social utility of law and legal institutions.
With the acceptance of the concept of a Welfare State in almost all democratic countries, the scope of State activity has expanded beyond expectations and with it the field of legislation. Not a day passes when besides the statutes passed by legislative bodies there are not issued, by way of subordinate legislation, regulations, rules, notifications and orders which leave no human activity untouched. These have the effect of regulating, restricting and in some cases even prohibiting the activities of the citizen. The field of law, therefore, is no longer a narrow one, limited only to the maintenance of order and the adjustment of rights between an individual and an individual. There is a growing readiness to accept law as an instrument of social control, concerned intimately with socio-economic dynamics and, therefore, as one which must be studied as such. Examples of the widening of the field of law are to be found in the numerous enactments touching industrial law and social reforms.
The traditional attitude to circumscribe legal studies to a mere understanding of the rules of law and of legal institutes can no longer hold good. Nor can the mere philosophical posture, such as that of Holmes, that the business of a law school is to teach law in the grand manner and to make great lawyers, continue to be valid in view of the social and economic events which are rapidly taking place all around us and their transforming the very structure of contemporary society. Maitland appears to have foreseen such a development and, therefore, held that legal institutions "can only be fully understood against the background of the totality of social institutions". Since his time the world events have so rapidly shifted the focus of law that Lord Sankey was constrained to observe that the mere practising lawyer was not enough and that law must join hands with all other social sciences. Recent thinking in England shows that problems of social policy became matters upon which the winning or losing the second world war depended. Their importance has not yet lessened in the post-war struggle for existence. It was, therefore, that Lord Radcliffe recently gave vent to the feeling when with his characteristic felicity of phrase he said; "you cannot learn law by learning law it must stand rooted in the great tradition of humana civilitas."
Legal philosophy thus is not primarily concerned with questions of language involved in the analysis of statutes and doctrinal issues. Books of law are not to be merely compilations of rules laid down in the precedents. The inquiry must be to discover the basis of a precedent and to formulate a new doctrine where such a basis has become obsolete by reason of the change in social conditions.
Yet the constitutional law is being taught divorced from political science and politics; so too the law of tort and of contract remains without any substantial adaptation to the changed environment. The impact of insurance, for instance, on the law of tort still remains unstudied. The majority of teachers and writers on law subjects do not regard it their function to go outside the doctrinal framework or to rationalise the legal rules in the background of contemporary society. The obvious result is that law is being taught in isolation from other social sciences which have rapidly advanced and the profession tutored under such a scheme of education tends to get cut off from the current of social and economic events.
This narrowness both in the legal teaching and writing is having a significant impact on the whole legal system, for that system in all its tires of administration remains separated from the current social strings. There is hardly any study worth the name encouraging criticism of the content and policy of a law and its effects on the individual or the society. Worse still, legal scholars showed total indifference towards the numerous amendments carried out in the Constitution, their necessity and their consequences on the legislative policies both at State and Central levels. The projection of social and economic democracy in the field of law is still viewed with indifference bordering on apathy.
The administration of law was so far regarded as too specialised and as the unassailable field of the few to be questioned. Suddenly there has, however, been a spurt of interest in examining the validity of the system in the context of the current problems both social and economic. Even within the profession itself the idea of law reform has begun to be voiced. For the first time there is felt the necessity of re-examining law and the legal institutions in the light of the social service functions performed by them. California University and the Harvard Law School recently undertook to investigate the objectives of legal education and formulated them principally under two heads: training of lawyers and improvement of law by providing centres, which may contribute to a fuller understanding of law and government and may creatively participate in their development and improvement. To these must be added training to solve not only the problems of the individual client but of the community in which the lawyer lives and to provide leaders in policy making: at all the diverse levels of authority.
This spirit of inquiry has been generated by the fact that as the field of legislation expands a large part of it is concerned with benefits and obligations of social services and the utilisation of the resources of the community. The question which is insistently put is—are these benefits and obligations fairly and justly distributed through the legal agencies?
Legal education must come to terms with this type of laws, the implementation of which will be in the hands of those who never enter the profession. These must be catered for if the target of legal education to improve the law is to be fulfilled. In point of fact, the majority of law students do not pursue the profession but enter public service, business and other avocations where the impact of the new legislation is the most felt. It is they who need the techniques and the skill of examining the tenability of the new legislation in the context of the varying needs and standards of current society. When laws are studied in this context and the academic lawyers evolve new principles, as did the old courts of Chancery by traversing beyond the framework of the common law, they will emerge more impressive and with a totally different status. They will be the experts to whom both the legal practitioners and: the politicians will turn for the know-how and for solutions of their problems.
Law is the most effective instrument of cohesion. It is both the embodiment of social values and the means for attaining them. Its purpose is to conserve and at the same time to further social values, to preserve liberty, to promote justice and to advance the common good. As has been aptly said, a person having a mere technical approach to law may either turn out a reactionary, obstructing progress and reform, or a nihilist ignorant of the value of all that he seeks to destroy. To quote from the memorandum of the Society of Public Teachers of Law to the Robbins Committee on higher education:
"Nor can we accept the changes, an entirely new world demands, by a wholesale annihilation or surrender of all that has been. The duty of an educated man and woman is to explore through reason and understanding, by frank discussion and open debate, those inevitable changes and to strive for a process of gradualness which coalesces the values of yesterday, today and tomorrow......... On it depends the future of our civilised world."
The challenge that legal education is confronted with is that besides providing effective teaching agencies it must provide through law school laboratories, as medicine and technology do, for carrying out research into law, its development and its application to the solution of current issues. That this challenge is not a mere Utopia can be seen from a thesis issued by Professor McDougal and Lass-well in their Legal Education and Public Policy which summoned the law schools to broaden their horizons and aims at not only training law students who will practise law but those who will shape the legal and constitutional policies of the nation. "If legal education", they said, "with contemporary world is adequately to serve the needs of a free and productive commonwealth it must be conscious, effective and systematic training for policy making. The proper function of our law schools is, in short, to contribute to the training of policy makers for the ever more complete achievement of the democratic values that constitute the professed aims of American policy." There is therefore, a clear necessity of framing of curriculum on the basis of the current mores o| our society joined with the knowledge of socio-economic questions but oriented toward the preservation of democratic values.
The obligations of Indian legal education, are voluminous considering the demands made on it by the vast population. The very size of the country coupled with its committal to democratic way of life, the diversities in its population, the multiplicity of language, tradition and religion, and the deep gap between the different sections of its vast population, social and economic, all these throw out the necessity of legal education being oriented by national specifications.
Being a democracy unparalleled in size, committed to the guaranteed rights of its citizens and to a constitutional policy of social and economic justice, those whose burden is to operate the judicial, agencies are bound to be confronted with the delicate and difficult task of reconciling and striking a balance between the demands of individuals on the one hand and of society on the other. It is this circumstance alone which has wrought during the last two decades a radical change in the nature of litigation, particularly in the superior courts. Whereas the traditional litigation has considerably diminished, there is a stupendous rise in writ litigation in which the State has emerged as the biggest, litigant. The result is large arrears in almost every court to wipe out which a large number of trained persons will of necessity be required.
Apart from the purely judicial; bodies there are also a growing number of administrative tribunals performing judicial and quasi-judicial functions. These tribunals are the necessary concomitants of a Welfare State. These also will need persons trained in law. A system of Government committed to a planned economy must result in increased legislation the implementation of which requires at diverse stages numerous policy-making decisions.
Legal education will, therefore, have to provide trained persons to man all these agencies endowed not only with the knowledge of the techniques of law but with an awareness of the democratic values, political, social and economic, which are the foundations of our Constitution.
Let me end with the hope that your deliberations will evolve ways and means to meet this challenge.
Author Name: Hon’ble Mr Justice J M Shelat
