Gilt-Edged Legal Education: A Comparative Study
Yves Caron *
Thoughts on the function of a law school or a faculty of law vary
from one university to another. Doubts remain as to whether those
institutions should mainly be regarded as “professional” schools or
as “academic” bodies; in places, controversies arise over so-called
“theoretical” and “practical” teaching methods, while each generation
of students makes its own suggestions and faculty members ask for
more independence and reduced teaching loads.
Law teaching is an old profession: courses on jurisprudence were
given in medieval times, but it is mainly as a result of the modern
reorganization of the legal professions that the teaching of the law
has been examined with renewed interest. In the old days, one did
not need a law degree to practice law and the faculty of law was
more academic than professional. Today, since the legal profession
now requires a law degree, closer links have been developed between
those corporations or associations and the law schools. In some
instances the Bar has taken charge of the law school, while in others
members of the Bar have assumed full responsibility for teaching
the law within universities. The development of law teaching as a
full time career has, however, modified this situation, but law schools
and faculties are, nevertheless, still faced with the dilemma: are we
professional or academic schools or both?
This paper attempts to compare some approaches to law teaching,
mainly by contrasting the results of these approaches, and this with
special reference to the teaching of the ‘civil and the common law.
This study will be based on some of the most successful schools
of law teaching in England, France and the United States, whose
diverse instruction methods offer fertile grounds for comparison.
For fear of abusive generalization, most of our examples will be
drawn from those universities that rank among the best in each
system (i.e. Oxford, Paris and Harvard).
Top universities in every system share an important characteristic:
the large number and competence of their faculty members and, in
* D. Phil. (Oxon), Associate Professor of Law, McGill University.
McGILL LAW JOURNAL
(Vol. 14
most cases, the capability and large size of their student bodies;
although the faculty-student ratio may vary greatly. Such a con-
centration of talent is necessary to the top-rated school, but, at the
same time, such conditions usually lead to success and reputation.
On the other hand, the number of faculty members has little im-
portance per se until it is determined what is expected from each
of them and until the teaching of the traditional basic courses is
assured. It is at this point that various tendencies and divergences
appear: do the faculty members devote their time to giving specialized
optional courses, teaching smaller sections, leading seminars or tutor-
ials, supervising graduate students, in doing research, participating
on faculty committees, overseeing a private practice, counselling
government or engaging in other activities more or less related to
their teaching function? An evaluation of the function of the faculty
of law (professional v. academic), the ideal of the teaching profession,
the standards of classroom performance and of the teacher-student
relationship will help to answer the preceding question. The faculty-
student ratio has a direct bearing on this; faculty pre-occupations
cannot quite be the same with a 1:10 ratio (e.g. Oxford) as with a
1:30 ratio (e.g. Columbia) or a 1:400 ratio (e.g. Paris). Conversely,
the admissions policy is also determined by the views on the accepted
role of the law school and the function of its professors.
Consequently, although Oxbridge has traditionally insisted on
‘education’ before ‘instruction’, while remaining both rich and inde-
pendent of the Bar and the Law Society, it has been able to maintain
personal relations between faculty and students through tutorials
and supervision. In recent years, those universities have had to depend
on the government’s Universities Grants Committee to supplement
their funds, but the tutorial method has remained intact, and in fact
is regarded as the main asset of the system. The American law schools,
on the other hand, though unable to maintain such a high ratio and
seemingly unwilling to devote personal attention to every student
in private, have tried to limit the number of their students to a
working maximum so that some form of personal relation could take
place in class via the case method. At the other extreme, however,
the Universitg de Paris has no inhibitions concerning education
generally (116,000 students in 1968) and legal education in particular:
with over 20,000 law students there is virtually no personal teacher-
student relationship, while facilities are definitely inadequate. In
Paris, no classroom allows more than 1,200 students at a time, and
even then, they have to sit or stand everywhere, including the podium.
The very thought of having so many students facing him would
probably make the average American law teacher feel quite inef-
No. 3]
GILT-EDGED LEGAL EDUCATION
fective, and he would perhaps be frightened upon being told that
he had to deliver his course in the form of an uninterrupted lecture.
Furthermore, the French professor must not even think of smoking
a cigarette with his students after class or otherwise commingling
with them. His entries and exits to and from the classroom must
be dignified and full of protocol. An appariteur makes sure that order
is maintained: the story goes that a student came to the door just
as the professor was to enter; being polite, he held the door and
respectfully said, “after you, sir”, upon which the professor walked
in and pulled the door behind himself, invoking the rule that bars
a student from entering the classroom after the professor.
If a French professor had to face a class of American students,
he would, in turn, be frightened to see a limited number of eager
students and to be on the firing line at every moment, having to
stimulate his audience by questions, and having to answer their
queries as they arise and to discuss his personal views without the
refuge of his hometown immunity.
At Oxbridge, this classroom relations problem is greatly simplified
to every one’s benefit: the classroom is regarded as just another
educational tool. There are not very many classes altogether, thus
meaning a small load to both faculty and students; dialogue is always
possible during class, although the socratic method is not as widely
used as in the United States. It is somehow admitted that the best
students are not expected to attend classes at all times or even on
a regular basis, whereas attendance is a must if the American method
is to be used consistently. If the student knows a better way of
getting the instructor’s thought or of spending his time more usefully,
he will not incur faculty -disapproval. No such discretion is granted
concerning tutorials, however, which form the core of the system. A
brilliant freshman who was also a rowing ace spent a whole term
without consulting with his tutors, and was facing an unfavourable
term report; he pleaded his case to his senior tutor who, considering
the man’s talent, agreed to draft his report as follows: “Mr. A. B. has
not submitted any bad papers during the past term.”
It would be easy to draw a conclusion at this point and support
the view that the traditional Oxbridge approach to legal education
is the best, as far as the faculty-student ratio is concerned, and on
the basis of the tutorial method, but it is also important to examine
the whole structure of each system and to appreciate the most re-
spected values in each of them.
McGILL LAW JOURNAL
[Vol. 14
Selecting the faculty and the students.
It would seem natural that the best universities of a country recruit
the best professors and students: recruitment criteria vary, however,
in terms of quality, quantity and homogeneity.
In a very centralized country like France, for example, the Uni-
versit6 de Paris is not easily accessible to law teachers, and a lot of
experience and lobbying is necessary before one can even think of
being offered an appointment there. The staff includes a few as-
sistants, but their function may be compared with that of clerks in
a law firm. The young graduate who wishes to be appointed to the
Paris faculty will go through the following process: he will take the
D. E. S. degree, a one year course that is the equivalent of a master’s
degree (LL.M.), then write a doctoral thesis and eventually get an
assistant’s post in one of the provincial universities, where he will,
for three or four years, teach a variety of topics. Then follows the
agrggation, which is a sort of doctor’s doctorate and a professor’s
professorship course, that selects the best candidates from all over
the country and submits them to an intensive course in which most
areas of civil and public law are covered. The candidate faces a double
elimination upon taking the oral and written examinations: first, he
must get a passing grade, which in se is an achievement, but, as this
is a government competition, the number of successful candidates is
determined by the number of teaching posts available according to
the ministry’s guidelines. Failure on the first try is almost standard,
but successful candidates are well rewarded, as the best jobs go to
the first-ranking candidates, as they choose. There is a built-in
advantage and disadvantage to this program: all French professors
(agr~gds) have been through exactly the same pattern of education,
have taken the same courses and examinations; they form an inte-
grated community that culminates in the Paris faculty. Specialization
is a matter of later concern. The agr~g6 thus takes a professorship
in one of the provincial universities and starts the long wait for a
Paris opening; he has to start early, though, for French faculty
members do not escape the publish-or-perish syndrome. When his
name has become familiar across the country, he may now start
visiting Paris, take the faculty members to lunch, establish his entries
in the Ministry of Education, make friends who will vote for him,
demonstrate that he is a top scholar and a good colleague, and see
that no competitor is out-doing him. Some people do not go to
all that trouble, but the odds are that they are simply not going to
make it to Paris unless they are outstanding and prove by deeds
only what others have proven by both deeds and words. This is
indeed a very long and ,low process, and there are not many young
men on the Paris faculty.
No. 3]
GILT-EDGED LEGAL EDUOATION
Paris can thus claim that it has the best of the best on the teachers’
side, and this claim is unchallenged; but to what type of students
is that academic wealth being offered? Oddly enough, there is hardly
any form of selection or discrimination in the admission of students.
There axe no tests or eliminative procedures before the student is
actually admitted; at registration time in October, the student goes
through the registry’s formalities and discusses his program of
studies, pays only a nominal registration fee and is set loose in the
big machine. His other main duty is to take the examinations in
due course. Licence students (the equivalent of the LL.B. degree) are
admitted by the thousands, though not all will take and pass final
examinations. Some register concurrently at two faculties, or keep
a full time job, or simply live in cafrs. In fact, though, one has to
attend the cats, which have become an annex to the exiguous class-
rooms and library halls. Publishing firms, together with faculty
members and student councils, make available every day the text of
the professor’s course for those who could not or did not attend, or
who, if they attended, did not take notes.
On the other hand, competition is quite serious in this university;
the high number of students make it a varied crowd -which includes
the best students from all over France. Owing to the French system
of grades and competition, top grades and ranks are sought by those
who wish to take advantage of future scholarships and top jobs. As
a result, and notwithstanding the material arrangements, there is
sufficient incentive for the able student to get the greatest benefit
out of the law courses, and, despite difficult housing and library
facilities, the level of scholarship attained is generally the best
possible.
One of the main disadvantages of this system, however, is the
lack of personal relation and communication between professor and
student. The instructor is the ‘Master’, remote from all and not
easily talked to, whether in class or elsewhere. Other critics attack
the passivity of students in class and the apparent need for extra
memorization, combined with the meagre understanding by the
student of what is being taught in class, although, on the whole,
it has yet to be proved that these criteria are more prevalent in this
system than in the others.
In order to understand the Parisian system of education, it must
be emphasized that the faculty of law is by no means a professional
school; besides, although the baccalaurgat (the equivalent of the
American B.A.)
is a prerequisite to law etudies, the licence degree
is not considered a graduate degree as the American LL.B. is, for
example. The law graduate may or may not become a lawyer, and
McGILL LAW JOURNAL
[Vol. 14
notwithstanding the very large number of law students in Pans,
few of them actually end up in private practice, as opposed to the
situation in the United States. There are many legal professions in
France: in the first place, the graduate must decide whether he
wants to teach, to practice or to be a magistrate; if he chooses
practice, he may be a notaire, an avoug or a procureur. In many
instances, he may undertake further studies, legal or otherwise, and,
often, it may take a number of years before he can earn a living
out of private practice or get a well-paying job with a law firm.
Just across the English Channel, the universities of Oxford and
Cambridge, founded by English medieval scholars who thought they
could do better than going to Paris as they were accustomed to, offer
an entirely different approach to legal education, mainly through
personal relations between tutor and student. Oxbridge faculty
members are elected in double-barrelled elections, since those uni-
versities are federations of colleges (over thirty colleges in each case).
A college is not a faculty, but an administrative unit, which includes
members of most faculties. The faculty is an academic unit, and exists
at the university – not the college –
level. As a result of this rather
complex structure, a faculty member at Oxbridge must, in most cases,
hold two appointments; a college appointment, which determines his
rank as a college member and the basis of his salary; and a university
appointment, which determines his academic rank and salary (e.g.
endowed chairs, fellowships, etc…). College appointments are voted
upon by the fellows of each college, after applications, nominations
and, occasionally, interviews by the fellows of the college or the ap-
pointments committee. The same pattern is followed with respect to
faculty appointments, and the two committees have, of course, to
co-ordinate their procedures. As a result, it happens that a full
professor with an endowed chair may be a junior fellow in his college.
Since the fellows of a college administer not only the college but also
the university, both financially –
there are no so-called university
trustees –
and academically, the college post has a definite value
and prestige.
Since there are various college and faculty posts, the academic
community is also varied. The representation of most age groups as
well as men of different backgrounds and varied experience, creates
a more stimulating environment for both faculty and students.
Besides, a faculty post at Oxbridge, except perhaps in the case of
the endowed chairs, does not mean the end of the road for the
teaching community, as it does in Paris; the creation of new uni-
versities has maintained some element of competition. The election
No. 3]
GILT-EDGED LEGAL EDUCATION
procedure, however, added to the traditional advantages offered to
faculty members, has helped to retain the very high level of compe-
tence and scholarship.
Student recruitment at Oxbridge is highly selective, though less
discriminating than it used to be. Talent and high school grades
form the basis for admissions, along with a special examination open
to pre-university students. Admissions seem to be made on the quali-
ties of the person instead of on pure statistical performance.
The great American law schools are famous for their tremendous
wealth, both financial and intellectual. The recruitment of top-rated
faculty members is rendered easy by the vast resources of all kinds
that are offered prospective members. No strict rules may be derived
from the recruitment procedures; those are within the dean’s realm,
and as a result of the great human mobility that exists in the United
States and of the rapid development of the law, there the best men
seem always to be willing to move to the top schools. The fact that
law professors are able to “commute” from faculty to government,
private practice or business and vice versa has also been a definite
asset both in bringing top men into the law schools and in keeping
them there.
Faculty members of American law schools have varied back-
grounds but it is striking to see that in the top-rated schools, they hold
diplomas, either graduate or undergraduate, of at least one of the
big schools (Harvard, Columbia, Yale, Michigan, Chicago). Some of
them hold doctoral degrees and others hold masters degrees only,
as post-graduate studies do not seem a prerequisite to ‘big time’
law teaching. Most law teachers, on the other hand, have either
taught in other schools, been in private practice for some years,
or occupied some position with a government agency; they are
members of several local bar associations and have survived the
publish-or-perish rule. Most age groups are represented, younger
members being appointed, in some instances, immediately upon gradu-
ation, though they are unlikely to remain with the same school for
a long period of years.
Student selection in the big schools is a long and complex pro-
cedure: admissions committees, however, rely mainly on pre-university
grades, the Law School Admission Test (administered by Princeton’s
Educational Testing Service) and other particular criteria. Al-
though success is the main key to admission, the law schools have
in recent years studied the possibility of admitting students coming
from less favored groups or areas. Of course, successes and grades
have traditionally been interpreted locally by the big schools, who
McGILL LAW JOURNAL
[Vol. 14
have devised their own ways of reading college grades and of evalu-
ating the candidates’ chances of success in law school.
Consequently, the faculty-student pattern is roughly the same in
English and American universities: top faculty and highly selected
students. Many differences exist, however, despite this apparent
similarity.
It is not quite possible to determine the exact ratio of admissions
and registrations to applications in the United States universities,
because the typical American student normally applies to several
schools at a time. Let us suppose that, after so applying, a student
is admitted by Harvard, Yale and his local school: owing to his own
personal or family situation, he may choose to go to the local school
and wait until he is at the post-graduate level to attend a big school.
Or he may choose to go to Harvard, thus rejecting Yale’s admission,
and therefore disturbing the statistical pattern. Perhaps Yale will
offer him a better scholarship because he is rated as a top student,
thus “bribing” him out of his choice.
The Oxbridge pattern is more reliable: students apply to Oxford
and Cambridge and, in the end, it is the university which picks the
candidates it wants, with very little competition between universities.
As far as it is possible to ascertain, the applications/registrations
ratio at Oxbridge is 6:1. It must be remembered, first, that the
law degree in England is generally a first degree, whereas the
American LL.B. is a graduate degree, and, second, that mobility is
a less important factor in England than in the United States.1
The law
As a result, whether direct or indirect, of national idiosyncra-
sies, legal systems vary from one country to another, and consequently,
indeed,
1 In Canada, legal education on a full-time basis is a comparatively recent
phenomenon; the bi-cultural element of Canadian life has had its effects on legal
education. Whereas most so-called common law provinces tend to organize their
law schools on the lines of the American ones, Quebec faculties of law have been
set up following French precendents; McGill’s Faculty of Law now offers a dual
program, composed of both civil and common law curricula and degrees (B.C.L.
and LL.B.). Such differences appear most in the methods of teaching the
law, which
in part from
the nature of the law itself. But to an increasing extent, the intermingling
of Canadian professors and deans, and the influx of younger faculty members
who go abroad to further graduate studies, added to the imperative of a
federal political structure and a dual legislative jurisdiction, have led Canadian
scholars to consider the development of truly Canadian institutions, where
the best of many other systems could be found. Surely, Canada is a paradise
for comparative law, and with students of both linguistic backgrounds going to
study in American, English and French universities, the oncoming years will
provide occasions for new developments as a result of such a mixture of influences.
it must be remembered, result at least
No. 9]
GILT-EDGED LEGAL EDUCATION
teaching methods follow the legal system they purport to study. It
would seem natural that in France, where private law has long been
codified, the methods used in the -classroom would be different from
those used in the United States, where judge-made law predominates,
regardless of the number of students in the classroom or of the
instructor’s personal background or preferences. Gone are the days
when English -and American law were quite identical; following the
national character and tendencies, the American law differs increas-
ingly from the English law and it is to be expected that teaching
methods will, therefore, have to be locally adjusted.
But what is the law ? This is a debated question among the
scholars of jurisprudence, and one which has yet to be answered,
though lawyers and judges have had to deal with legal problems
and to find the best solutions possible. But whether the law takes
the form of a code, a statute, or of regulatory provisions, rules or
customs, the methods of teaching it may, nevertheless, vary. The
American lawyers now distinguish between the common law as
developed in England and the precedents established by their own
courts. The vast number of reported cases in the United States –
vast indeed when compared to the English reports, which carry only
the relevant or useful cases –
and the heavy continuing flow of
judicial decisions have had a definite impact on the American concept
of law and on the actual rules of law. This rapid evolution cannot
be ignored in the process of American legal education.
On the other hand, so-called national law schools in the United
States are not committed to teaching local law (i.e. State law), but
they try to teach what we may call “average” or “median” legal
principles in an effort to reach all state laws and cover the main
problems arising in a given field. The law teacher thus faces a
situation where, on the one hand, he is obliged to get at the core
of the problems and, therefore, is tempted to look for the principles
and fundamental rules, but where, on the other hand, those very
rules and principles are under the constant revision of, and interpret-
ation by, fifty State courts and necessarily require some form of
judicial context in order to be analysed. Hence the use of the case
method, which was at first used as a supplement to lectures, but
which has since overpowered the older approach to law teaching. The
American law student does not always learn the rules of law, but he is
constantly faced with real situations and judicial precedents, and is
forced to evaluate the soundness of the present trend or the actual
judgment, to appraise the acceptability of the result and to suggest
suitable alternatives. Common law principles and other basic rules
maintain some of their influence, but the student, through the socratic
McGILL LAW JOURNAL
[Vol. 14
method, is led to consider the law as a consumer commodity that
is subject to the law of supply and demand and thus lacks permanent
value. The trend in American law is also one of specialization; more
and more legislation is in the regulatory form, whereas the broad
principles that used to form the core of the system tend to disappear.
Tax laws and business regulation, for example, illustrate this new
legislation where arbitrary rule and administrative rulings have in-
vaded the field of rational legislation.
The English legal community has maintained a profound respect
for the common law and equity and, although the stare decisis rule
has been relaxed in recent years, precedents still keep their intrinsic
value and the courts have not entered into any judicial law-making
spree. One of the main reasons for this attitude is that the legislative
process is very sensitive and effective in England: legal reforms are
being carried through Parliament with reasonable diligence and the
courts have not presumed to replace the legislature as has happened
in the United States. The teaching of the law has, therefore, remained
in line with the traditional approach to legal concepts; the rule of
law will be examined, not as the temporary result of the latest judicial
analysis, but as a more permanent phenomenon, susceptible of being
changed, but which can and must be relied upon as a social value.,
Since the English B.A. in jurisprudence is not a graduate degree,
the approach to the teaching of the law can be much broader than
in the United States; greater emphasis is devoted to institutions,
jurisprudence, Roman law and historical precedents, although the
basic ‘first year courses’, that is to say, contracts, torts, criminal
and constitutional law and property, are a part of the curriculum.
The story goes that a young lecturer, having announced a course on
‘thirteenth century law of property’ found himself without students;
being told to try and find something more modern, he announced,
the next term, a course on ‘fifteenth century law of property’! It is
occasionally said that it is not the subject matter of a course which
bears on the educational value, but the method used and the amount
of personal work done by the student. Nonetheless, the differences in
English and American law explain many of the differences that exist
in both the educational and also the judicial processes.
Where the law is codified, as in France, teaching methods might
also be different: the law does not follow from precedents and
rulings, but is stated in relatively plain words, following decades of
continuous evolution. One of the inconveniences of codified law is that
the student may think that all the law is in the code and that he
only has to cope with that document. But as judicial law-making is
virtually non-existent in France, although the courts have had to go
No. 3]
GILT-EDGED LEGAL EDUCATION
to great lengths in some instances to clarify the written law, lawyers
and scholars expect to find the law in the codes and in the statute
books, and not in the law reports. Obviously, although most of the
private law is codified, there are, nonetheless, scores of special
statutes, regulations and decrees that are included in the law. Law
reports have a more limited use than in the Anglo-American systems,
mainly in view of the absence of a stare decisis rule.
Codes and statutes have afforded such a feeling of security to
scholars and practicing lawyers that, at one time, the interpretation
of the law was very much a matter of personal view. The great
treatises that were written before 1940 were works of talent and
deep insight but they were the product of a highly individualistic
notion of legal scholarship. One has indeed to compare the various
interpretations of a single rule of the Civil Code by Baudry-Lacanti-
nerie, Planiol or Aubi and Rau, for example, to see how much free-
dom was claimed by those writers, although their thoughts are still
leading the way in many areas where contemporary legislators and
writers have found no better alternative.
The system led to abuses, however, and, for a period of years,
the law that was taught in the universities was not always the same
as that which was enforced in the courts, due to individualistic
tendencies and to an almost total absence of communication. The
university was an impregnable Ivory Tower. Law teachers, in spite
of judicial -decisions, would sometimes defend their own theories as
the prevailing solutions; in turn, though, practicing lawyers would
often ignore the writings.
Although there remains a good deal of self-pride and isolationism
among the legal communities, faculty members have increased their
participation in the legislative and judicial areas by acting as govern-
ment counsel and attorneys. The revision of the Code civil is another
good example of such co-operation.
Teaching methods
Programs of legal instruction are generally composed of courses
(in the classroom), seminars, legal writings, tutorials and field work,
a more recent innovation. The dosage of each and any of those in-
gredients may change the whole face of a system. It may be said
that the French legal instruction program is almost exclusively based
on courses given to large audiences in the form of lectures or con-
fdrences, during ‘and after which the verbal dialogue between pro-
fessor and student is non-existent, and it has been criticized for that
very reason.
McGILL LAW JOURNAL
[Vol. 14
At Oxbridge, on the other hand, the main tool of legal education
is the tutorial, a weekly meeting between professor and student to
discuss a paper written by the student on an assigned topic. Each
student may have to attend up to four such tutorials per week.
Consequently, great use is being made of the student’s verbal talents,
research ability and writing capacity along with a moderate use of
lecture-type courses.
In the national American law schools, the lecture course still is
the main medium of communication between teacher and student,
but great emphasis is placed on the case-problem method working in a
socratic question-and-answer manner. The system requires that stu-
dents attend all or most classes if they are to participate actively
and take their turn when personally addressed. Seminars also are
widely used in the second and third years, following which students
must submit a term paper; the number of students participating in
seminars is usually limited to 15 or 20, thus affording a possibility
for more and deeper discussion and analysis. There are, however,
hints that some students might try to ‘seminar out’ by taking as many
seminars as possible (regulation limits the total credits thus avail-
able) and evading term examinations attached to lecture-type courses.
Seminars are marked upon term papers and classroom participation.
American universities offer no tutorials as a rule, although a
few law schools do include a few tutorials in their curriculum and
students may sometimes earn credits by doing research for a professor
which would normally involve exchanges in the form of a tutorial.
Legal writing is encouraged and usually required through seminars
and law review editorship: the big schools have now organized several
specialized law reviews, the membership of which is determined by
the students’ grade performance; the members in turn can earn
credits for their law review research and writings.
Field work is a relatively new idea as a part of legal instruction
although students have for many years felt the need for closer
contacts with practice. Legal aid services will provide the students
with opportunities of getting closer to real life problems, as have
the few legal clinics in the field of domestic relations and other
family and estate law areas. Most of these clinics are on the ex-
perimental level but the field work concept is one of probable
expansion in the near future. Professors supply guidance through
these sessions along with other specialists: judges, psychiatrists and
sociologists, for example.
As far as programs and curricula are concerned, the question of
equilibrium is not a major issue; the overall achievement is the real
No. 3]
GILT-EDGED LEGAL EDUCATION
area of pre-occupation. Does a given system produce as good lawyers
as any other, or not, and why?
Before going further, and in order to have a full picture of the
legal education programs, a few notes on post-graduate studies may be
useful. In France, the master’s degree (D.E.S.) is a one year course,
entirely different and separate from the licence degree (LL.L).
In Paris, the masters candidates are offered about twenty-five ad-
vanced courses, of which they must select seven; each course consists
mainly of lectures, with some seminars and legal writing as well as
examinations, both oral and written. If successful, the doctoral candi-
date may then register his title for a doctoral thesis and write under
the informal supervision of a faculty member. It is worth remembering
the variety of doctoral degrees in France; at least three doctorates
are recognized by the Ministry of Education (Doctorat d’Etat, Doc-
torat d’Universitg, Doctorat de troisi~me cycle), and there are others,
granted by private institutions, but not acknowledged by the State.
At Oxford, the B.C.L. degree is a graduate degree, and is a two
year course, separate from the B.A. course and program. It consists
of lectures, seminars and tutorials on advanced topics; the number
of candidates is limited and the successful candidates generally attain
is the usual gate-way to a
an impressive level of scholarship. It
teaching career. Research and thesis degrees at Oxford and Cam-
bridge (e.g. Diploma in Law, B.Litt., D.Phil.) require a period of
residence of three to six terms, during which the candidate establishes
his own program with the help of his supervisor and of the chairman
of the law board; he may attend B.C.L. or other lectures and seminars
and work more closely with some other faculty members, on a tutorial
basis, in the course of his research and writings. The B.C.L. degree
is not a prerequisite to those degrees, nor is it a short-cut to them.
Admissions are generally made on a personal basis, and the number
of candidates is limited to assure the efficiency of the supervision
arrangements. One must also keep in mind that, in those universities,
the student also has to seek admission from both a college and the
university (administrative and academic authorities).
In the American schools, the masters degree is a prerequisite to
the doctorate; LL. M. candidates are selected on their merit and have
to follow a program of instruction that is composed of lectures,
seminars and legal writings; nonetheless, there is no total separation
between LL. B. and graduate students, who may happen to take the
same courses and seminars in the form of a fourth year of law
school. Only a few schools offer specialized programs, although some
schools offer special degrees or programs for those who do not have
American degrees or their equivalent. A further selection takes place
McGILL LAW JOURNAL
[Vol. 14
upon completion of the master’s degree, as not all candidates are
admitted to write their doctoral thesis. The Columbia Law School
also offers a special doctoral program to law teachers with some
experience, leading to the J.S.D. degree.
What conclusion is there to be drawn after such a description of
these legal education systems? What, after all, is a good lawyer or
a good law school graduate and what is the best way of producing
one? Would a good way of finding out be to query what is expected
from a fresh graduate? What function does he have in society? Can
it be said that the law faculties produce the lawyers that are in
demand now and that their methods and programs are set, conscious-
ly or not, in order to supply the demand? This remains to be
proved, as the universities have remained quite independent from the
practising communities. One yardstick is often suggested in order to
measure the quality of a law school’s curriculum: can a fresh graduate
set up an office on the main street right upon graduation and start
his practice? But is this desirable? Whatever the quality of a school’s
education and training, unless the student has actually been practising
with a firm or in a clinic, he will need some experience. Legal
education has not yet worked like medical education where the student
spends most of his later years in a laboratory or an hospital. In fact,
though, many law graduates actually practise on their own right out
of law school, as they have been doing for many years, and their
performance does not seem to vary with the kind of legal education
they have received. It may be said that a good lawyer is always a
good one, although he may lack some experience. On the other hand,
experience has also shown that it takes less than a year for a fresh
lawyer to make up for his lack of practical background – mainly red
tape type of procedures –
if he joins an established law firm.
On the whole, all forms of law teaching should lead to legal
practice; all laws exist as a result of real problems, and it should
be the goal of the teacher to point out the possible circumstances
which can give rise to the application of a rule of law. The law
graduate should be able to repeat this process in real life. Being a
good drafter or conveyancer or negotiator is quite an asset to a lawyer
but it is not his basic function: those are accessories, essential in
many cases, which he will develop in the course of his own experience.
Becoming a lawyer is an intellectual game: a lot of exercise is neces-
sary and it appears that teaching the student to master legal concepts,
principles and rules, to appreciate the political, social and economic
context of the legal system, to value the role of the legislative and
judicial process is even more of a necessity than to make him a
good bargainer or deed drafter or trial lawyer. If he can get both
No. 3]
GILT-EDGED LEGAL EDUCATION
irom the law school, so much the better, but the latter aspect is
much easier to acquire privately. The so-called third year slump may
well be a result of the method used more than of the curriculum
or the study of the law per se. However good a method may be, it
is obvious that too much of a good thing can lead to deterioration;
if the student is made to believe that he can learn all about the law
through the case method, it seems obvious that as soon that he
masters that method, he normally needs a new incentive to keep his
interest at a high level. This is why methodology should always
lead to deeper analysis of the substance of the law, where problems
get more and more subtle and difficult, thus maintaining the student’s
interest and curiosity. Methods for the sake of methods will result
in student boredom, whatever the method and whatever the legal
system.
Teacher and student relationship
The main center of interest in legal education, as indeed in all
forms of education, is the amount and the quality of communications
between teacher and student. Whatever the topic taught, it may be
a bore or a marvel as a result of a good or a bad relationship. If the
French feel they can communicate effectively through the use of the
conference, let them use it! There may be more talk between the
American professor and his student through the socratic method, but
this system is not foolproof : if the student is careful enough to recite
the very terms of the statute, or of the case, or of the text book,
he may have talked more, but he is not going any further, and while
he talks, the instructor and the whole class have to listen to him;
if his comments rate no better than average, which seems to be quite
common, the whole group has to suffer. The conscientious student
who has done his homework would thus find very little benefit in the
classroom session. In the lecture-type class, though the student may
often be passive, he may have much to learn from what the professor
has to say, especially if he has done his homework and is allowed
to interrupt with relevant questions.
The big value of the tutorial and, in many instances, of the seminar
is that it affords a more direct and personal dialogue whereby the
student can really get at the thoughts, experience and personality
of the instructor. This is one of the most rewarding experiments.
The French generally see the conference as an ideal tool with which
the teacher is allowed to treat a topic as he personally thinks best,
according to his own experience and personality; he must go un-
interrupted, because it is thought that he must be able to discuss
all the basic elements of a problem before going into the particular
aspects and also because it is regarded as a scholarly achievement
McGILL LAW JOURNAL
[Vol. 14
to master both a topic and a class with the traditional rhetoric. The
high number of students justifies the use of this method but, on the
other hand, the high number of students is allowed because it is
thought that the method is suitable for that purpose; in the smaller
provincial law faculties, the very same methods are used with small
classes. Here again, one might question whether the method is not
praised for its own sake.
One is led to the conclusion that it is not the nature of the
courses taken by a student, nor the amount of time spent in class,
that will make a good lawyer but indeed the amount of personal work
done under proper supervision, combined with opportunities for ex-
changing views with instructors and fellow students. No system can
claim perfection but let us here make a comparison of two possible
situations.
A, a Harvard student, is taking a course on property law; he
reads the assignment for the next class, looks further into taxation
materials, looks up a conveyancer’s manual, and walks into class.
The instructor will raise the problems and ask for contributions from
students B, C, and D, who, though aware of the problems, have
only average comments to submit. A intervenes a few times, but
for lack of time available, he cannot get clarification of the points
that were bothering him. When the class ends, the instructor has
not given a definite answer to some of the problems for various
reasons though it will be assumed, in the future, that this area has
been covered. A is left with his own good homework, but he will
have to see the instructor to get the clarification he needs. He may
consult with his fellow classmates, who may be in an even worse
position, but he may still remain unsatisfied. Moreover, although
he knows that he may always knock at the instructor’s door, he will
often abstain from doing so for fear of being a nuisance or out of
sheer inertia.
On the other hand, F, a Paris law student taking a course in
property law, reads the relevant Code sections and a few text-book
pages before he goes into class; there, the instructor will elaborate
the substance of a problem, propose a few illustrations of actual
difficulties, expose many opinions held by authors on this topic, and
sum up by giving his own view –
according to strict
reasoning and along with a string of authorities, judicial and others.
The student has not been able to interject any comments or raise
any questions, and he knows that he is not likely to meet the
instructor to discuss the matter. But, on the other hand, he is likely
to drop in to the nearest caf6 or at a friend’s apartment after class,
and then have a thorough discussion, on the basis not only of his
the best –
No. 3]
GILT-EDGED LEGAL EDUCATION
own readings but also of the teacher’s own expressed opinion and
of the supporting authorities. In the end, although the American and
French classroom sessions have been quite different, the French
student might still be ahead in his knowledge of the law because the
sum of additional information he gets beyond his own homework is
greater. Of course, this comparison supposes that talents and methods
are equal and does not allow any adjustment for any differences in
the law itself.
But the best of all would still be the Oxbridge tutorial system,
which enables the student to do his homework, to attend those
lectures he wishes most to attend, to participate in seminars and
still be able to rely on the tutorial sessions to get through with
particular problems and difficulties. In fact, this situation allows the
student to spend much less time on certain problems where he would
have had to work longer if he did not have a tutor or where he
would have had to waste time in class because of a larger group.
Besides, he knows that almost any day he can have lunch, tea or
sherry with one of the instructors and thereby enjoy further oppor-
tunities to discuss academic and non-academic matters.
Economic reasons would compel most universities to reject the
tutorial method based on a very high faculty/student ratio, although
many of them would benefit from the idea that ‘education’, legal or
otherwise, comes before ‘instruction’; on the whole, though, it would
seem desirable to multiply and encourage the opportunities for real
dialogue between instructor and student, to a larger and deeper extent
than the recital of facts and cases in class. This, however, is a matter
of policy, and the whole concept of law teaching is at stake. Should
a law teacher be more of a lecturer or an educator, administrator or
research specialist? Policy and personal taste will provide the answer.
The North American law teacher, accustomed as he is to a certain
comfort, will perhaps be surprised to learn that in many European
countries, including France, law faculties hardly enjoy any physical
facilities other than classrooms and a few administrative offices; in
the majority of cases, faculty members do not have offices of their
own or other facilities like secretarial help. The faculty of law
at Poitiers was one of the first to allocate offices to its faculty some
years ago, after the dean had spent some time in Canada and brought
new ideas back with him. But this is just a way of living; while
the Oxford don spends most of his life in college, the French
faculty member spends his at home, where he sets up a library, office
and study. He goes to the faculty for lectures, meetings and the use
of the library. Many professors are known to commute from over
two hundred miles away to lecture (e.g. Paris – Poitiers, Lyon – Mar-
McGILL LAW JOURNAL
[Vol. 14
seilles). This provides another good reason for their reluctance to
meet with the students. But there is also the perennial master-pupil
concept of education, coupled with social customs concerning hier-
archy and protocol, which prevents closer relationships.
In the American universities, one perhaps takes for granted the
effectiveness of the socratic method, notwithstanding the occasional
surge for improvement. However, one must distinguish between talk,
communication and dialogue; it seems quite possible to be as passive
during a socratic-type class as during a conference. In other words,
the method must not be taken for granted, as it is only an educational
instrument; as examinations are imperfect ways of testing the knowl-
edge of students and as students can get comparable grades and
success under either method, it is only in the long run that edu-
cational results will become evident.
It is not because the professor sits there in his office that the
student will come to seek advice; quite the contrary, and every one
knows it. Basically, one must revert to the question – what do both
faculty and students think of their own function, what do they think
is expected from them, and at what cost? There is a tendency today
to think that there is great virtue in having to cram through tests
before entering universities and to exhaust oneself by going through
examinations. Experience, however, has not shown that the L.S.A.T.
is a much more reliable criterion than a four year college grades
sheet though it may have been able to provide a better indication
of aptitude in some cases when combined with the grades. Reasonably
able students generally get good marks if they undertake a reasonable
amount of work, whatever the system, provided they can adjust to
the system; but if the system allows the good student to neglect
his duty, his grades may suffer; conversely, if the system puts
pressure on him, his grades might go further up, provided, how-
ever, that the system supports and acknowledges his efforts. Long
term efforts will always be more fruitful than intensive examination
periods. Intellectual training is not very much different from
physical training: mile records might not be lowered without both
coaches and runners, without strict programs and testing, without
improvement of basic know-how and techniques, better research
facilities and, finally, without competition. Human beings are natu-
rally competitive and the educational systems must respect this tend-
ency: promotions, ranks, grades and prizes, however humiliating
for those who do not earn them, are necessary to satisfy the com-
petitive instincts of both faculty and students.
One of the immediate goals of legal education is the demand for
lawyers from society: In North America, for example, there is a
No. 3]
GILT-EDGED LEGAL EDUCATION
though not necessarily a great need –
demand –
for lawyers who
are to start practising right after graduation: a practising lawyer has
his way paved, in a sense, into financial and political communities
which do not expect further education or training on his part. In
most European countries, on the other hand, a young graduate has
still to go through further training before there is a real demand for
his services. This may be compared with the training of law teachers
in North America; not all law schools are anxious to appoint a fresh
graduate: they would rather have him go through post-graduate
studies and get some experience in practice.
The English Bar is a good example of this type of post-graduate
training. In the first place, the number of barristers, as opposed to
solicitors, is limited (about two thousand, of whom only four to five
hundred are engaged in active practice) and concentrated in London.
Owing to the very efficient court administration and to self-discipline,
there is no real backlog of cases in the courts, where cases are being
tried within a few months instead of the usual two to six years in
North America, yet there is no pressure or need for many more
barristers. The future barrister will usually take a B.A. degree (often
at Oxford or Cambridge) and then register for his ‘dining terms’, a
period during which he is registered with a barrister and dines, at
intervals, at one of the Inns of court; he may also take the courses
given by the Bar that normally lead to the Bar examination or take
any other course or degree that will provide the equivalent. Since
many candidates from outside the country – mainly from Common-
wealth countries –
take the Bar examination, the failure rate is
very high but the successful candidate is finally called to the Bar,
though he is not allowed to practice by himself until one year later,
while he remains for that twelvemonth a
‘pupil’ in a barrister’s
chambers. Thereafter, he is allowed to practice but unless he is well
off or has some connections with a solicitor, he will not be able to
maintain his own chambers right from beginning. A barrister deals
only with solicitors, who bring him briefs, and hardly meets with
the clients at all.
Reputation is the only way of getting the solicitors’ trust and
confidence. If the young barrister comes from a well-known family
or has become famous in another way, he may thus have a good
start but, otherwise, he has to earn his own reputation by working
in the shadow of his master until he breaks into the open with a
brilliant performance on a case that was considered lost. Up to that
time, he will have to supplement his meagre income by writing law
reports or by taking various assignments connected with his pro-
fession. When he gets through as a barrister, and is frequently briefed
by solicitors, he still faces another quite formidable obstacle: if he
McGILL LAW JOURNAL
[Vol. 14
wants to be a top barrister, he must become a ‘silk’, or Queen’s
Counsel. This honor is earned as a result of a particularly brilliant
performance in the courtroom, where it becomes obvious that he
actually is, or at least has shown that he has all the qualities for
becoming, a master. This honour will be granted upon recommend-
ation by a fellow Q.C. From then on he is a top man who must
always have a pupil or another barrister as an assistant with him;
but at that stage it has been quite some time since he graduated.
And yet, there is no backlog on the court’s roll; judges are appointed
from the fine Q.C. crowd, which also forms the backbone of the
political parties.
To the American lawyer, the English legal system may appear
to lack action and creativity, but if the American legislative and
judicial organizations have changed so rapidly, it is because the local
circumstances have made it clear that the traditional procedure was
not efficient any more. A different situation has called for different
methods and solutions. Many State statute books contain a host of
laws that have been rejected by the courts; on the other hand, when
the legislature will not adopt new laws, the judiciary will take over
and redirect the interpretation of legal principles in such a way as
to innovate or to satisfy new needs. The English Parliament has
been more vigilant and concerned about its duties and the courts have
not had to intervene to such an extent. So many differences now
exist in the two systems, as indeed the geographical, political and
social structures of the countries would indicate, that it would be
naive to compare their judicial and legislative processes without
proper distinctions.
It may not be wrong to think that, in the present conditions,
English law and English legal education have more in common with
the continental systems than with the American institutions. The
law school as a professional school is an American invention, in a
country with younger traditions in which the legal community is big
and influential. It is worth remembering, however, that in many other
countries, a law degree is an asset to economists, political scientists,
historians and others, so that a law degree that would insist too
much on the ‘practice’ aspect would often miss its point. In Europe,
the civil service has retained much of its power and competence and
is looking for graduates with a solid humanities training, coupled
with a wide range of scientific notions, and not for the high-geared
professional man who often lacks a proper social science or humanities
background. There is no doubt that a well-trained American lawyer
has an outstanding command of legal science and legal or judicial
No. 3]
GILT-EDGED LEGAL EDUCATION
techniques; on the other hand, top men in any system can compete
together, whatever their actual methods.
In setting up the methods of legal education, we have to worry
about what the average graduate will be like. The outcome of this
comparison confirms an earlier statement: education and legal
systems follow local idiosyncrasies and obey the laws of supply and
demand. On the other hand, comparisons and improvements can be
made: one does not like to think of a law school as a
‘factory’ of
lawyers, though it may be untrue that any school has reached that
point. In fact, the American law schools ought to be cited for their
research in the field of legal education and the rapprochements that
have been effected with both government agencies and private
business and practice. However, this also is a result of the system,
where the law schools were called upon to fill the gaps of a less
efficient civil service. On the other hand, English and French faculty
members are increasingly entering into co-operation with both private
and public agencies. Big universities remain conservative, though,
and many of their so-called innovations are only further mani-
festations of their conservatism.
Law teaching may vary from one faculty to another, but the task
is always the same: a law is a law is a law! The teacher is trying
to convey to his student his own curiosity and appreciation of facts
and rules, but the student has to do the work by himself: making
the students work is one of the big preoccupations of law faculties.
Experience has to be gained; it cannot be taught, but it can perhaps
be felt by a student or a class. Since not all students have the same
needs, the teacher’s task is to find the best method to suit the
majority; this also implies that many will be left unsatisfied. After
a number of years, when statutes will have been repealed and modified,
the law school will be remembered for so and so’s approach to legal
problems, his method and philosophy but not for much else! This
factor should always be in the teacher’s mind.
We may best conclude by re-iterating the theme of this paper:
there still appears to be a case for more ‘education’ than ‘instruction’
in the law faculties, despite graduate schools. ‘Lawyering’ is as much
of an art as of a science, and it takes a good deal of humanistic sense
to grasp the full implications of a law. Law and legal education are
for all three branches of social organization –
legislative, executive
and judicial –
and not only for the latter. No great harm would
result from a young barrister needing help –
to
deal with his first cases, but great benefit would result if lawyers
were ‘lawyers’ before being traders in law. It might make the law,
legislative or judicial, more equitable and human.
and getting it –
McGILL LAW JOURNAL
[Vol. 14
A POSTSCRIPT, following the recent events that have taken place
at Columbia University and the Universit6 de Paris.
At Columbia University, where most University activities were
brought to a standstill during the month of May 1968, the pro-
fessional schools, and in particular the Law School, continued to
operate as usual except for those few days when the University
buildings were altogether closed by the administration. Out of solid-
arity with the student community, law students staged a one day
strike on the re-opening of the buildings. Spring examinations were
taken on a pass or incomplete basis by students, as grades and
prizes were suspended by the Faculty.
The issues now at stake as a result of the student unrest are
numerous and complex. If the students of Paris were fighting for
a university that was less dependent on political or ministerial
influence, for better library facilities, for classrooms where everyone
could get a seat, for the availability of professors for personal
discussion or for the accessibility of the working class student to
higher education, they were then fighting for what students at
Berkeley or Columbia already had. Then why did those at Berkeley
and Columbia revolt?
Universities are a favorite target of those youthful and sometimes
flamboyant illustrations of contemporary problems, because it is a
natural forum for younger people to be at, because some pretend
that universities represent the ultimate product of a corrupted society
which feeds itself through the graduation of still more mass-produced
students, because, of course, it is much more fun to be out on the
campus demonstrating than siting in and listening to a (dull)
lecture. As prisoners seize their jail, as ghetto dwellers burn slums,
so students paralyse
in the
buildings, hold “liberated classes” in the gardens or in the adjoining
pubs, and make noise in those areas where silence is normally re-
quired. Mass demonstration (e.g. confrontation politics) is the key
instrument in this new approach to the process of evolution, albeit
the ultimate recourse of desperadoes, who are now taking over the
somewhat similar techniques of European communists in the pre-
World War II era. Extremism and repeated demonstrations for
the sake of demonstrating had then little impact but the alienation
of those who might otherwise have supported the cause and (as
Trotsky put it) succeeded only in irritating all classes without win-
ning over any.
their universities,
lock
themselves
No. 3]
GILT-EDGED LEGAL EDUCATION
Strange results are nevertheless obtained: at Columbia, for
example, the main clash between students and policemen did not
directly involve the Students for a Democratic Society. It did involve
a large group of student and faculty members who were opposed
to the occupation of University buildings by S.D.S. students, but
who were also opposed to police intervention into student and uni-
versity affairs taking place on the campus. It was interesting to
observe that at this point, most of the -legal aspects involved in
this matter, the respect of property rights, violation of regulations,
breach of the peace, danger to public security, were generally dis-
regarded.
The problem took the form of an insoluble dilemma. On the one
hand, a minority (although in other places it may have been a
majority: in Paris, for example) of persons seize university or
other public (or semi-public) buildings and occupy them by force,
while, on the other hand, their -attitude is in fact adapted to the
very structure of the society they are attacking. Their action has
the character of a semi-revolutionary process, but if they acted in
the true spirit of a revolution, they would hardly complain that
society
calls the police
against them. However, the goal of making the universities the
forum of intellectual activity implies a policy of liberalism whereby
all schools and theories must be accepted as a common pool of ideas.
This very principle is self-defeating when applied to any extremist
theory.
(acting through university authorities)
The right to dissent has taken new proportions, especially as
a result of the interpretation of the American constitution by the
Supreme Court of the United States. It may now be difficult to
determine the notions of dissent, peaceful demonstration, passive
resistance as opposed to aggression, rebellion or revolution. It would
seem, however, that the fact of -a group’s occupying a public building
and sitting in, however “peacefully”, thus blocking entrance or use
by others, cannot rightly be called an act of passive resistance, let
alone the fact of resisting arrest on charges of trespassing. It, may
be called passive in that the person is not offering resistance, but
active aggression has already taken place where forcible occupation
has been made. There would be more hope for the reformation of
society if efforts were combined in a positive way and if students,
for example, would care to carry with them the vision of a better
society when they emerge from the universities into real life, instead
of taking their place in the shrine of the bourgeoisie which their
diploma gives them the “right” to do.
McGILL LAW JOURNAL
[Vol. 14
The recent events and the present trend in both the universities
and the other institutions of education tend to demonstrate that
education is no longer to be regarded as a one-sided affair. The more
our political agencies have put forward the idea of a “right to
education”, the more the subjects of such rights have realized that
they might also have some right, or at least some say, in the
modalities of exercise of such a right. When education is dealt with
on the level of human and intellectual relations, there is much
more success to be expected from it than when it is dealt with
behind the shield of bureaucracy and of distant magister-ship.
The degree of maturity that is generally recognized in law students
is an asset which should be re-evaluated by those concerned with legal
education. The methods which have been described with respect to
three leading types of universities show that a variety of factors,
local, geographical, political or other will influence the choice of
teaching and educational approaches, whereas the quality of the
finished product will also vary according to such methods. Today,
at a time when Paris is talking of democratizing its university and
when the leading American universities are having some doubts
about the efficiency of the case method as so widely used, there may
be a lesson for us, an opportunity to critically analyse our teaching
methods and our basic approach to legal education, in view of the
fact that no teacher can transfer more than he has and that any
method, however good, can become boring if used in excessive
quantities or diverted from its primary use and function.
