Constitution, institution, foundation: a ius commune of legal education

In a chapter I finished a while back for Catrina Denvir’s forthcoming book on Modernising Legal Education I explored what modernising the law school actually means, with case studies – hence the title, referencing Talking Heads, ‘Same as it ever was?  Second modernity, technocracy, and the design of digital legal education’.  As I point out, law has always been modernising itself in the academy, as politics, religious, economic, power relations and many other factors dictate (Brexit is a good contemporary example, as is the SRA’s SQE).  Not least is the perplexing issue of a constitutionality of legal education – in what sense can we say that there is a constitution for/of legal education?  Is such a thing possible, necessary?  Here’s one attempt at an answer, using Scots legal education as a context.

When I studied Scots Law at Glasgow University and came across the concept and texts of the Institutional Writers, it seemed as if I’d come across a constitutionality of Scots Law, one born of a tradition of institutionality that derived from Roman Law and the Renaissance absorption in (re-)making foundations and foundational thinking.^[1]  As someone who always voted Scots independence, within a European polity, I found it an intriguing idea.  It was relatively easy to trace the effects of Institutional Writers between, eg, Public Law, Scottish Legal System and Scots Law History courses.   But what was never mentioned (indeed hardly in the entire degree programme) was the history of Scots legal education, and how important the Institutional Writers, it seemed to me, were to the development of Scots legal education.

The effect that the partial codification of the Institutional Writers had on Scots legal education was profound, and we can see it in those Writers (that is, Scots lawyers who were not Advocates) who wrote about their experiences as students.  Walter Scott, a Writer, later Clerk of the Court of Session  and later still Sheriff-Depute of Selkirkshire, wrote about it in some detail.  He attended Edinburgh University, studying Moral Philosophy under Dugald Stewart, and Scots law under Baron David Hume, nephew to the philosopher.^[2]  Through the teachings of both men Scott would have become aware of the complex relations between concepts of virtue and law, the civilian roots of Scots Law, and the foundations of the Institutional Writers, as well as the wider cultural context of that foundation.  Moreover, it was from Baron David Hume, Professor of Scots Law at Edinburgh, that Scott encountered law predominantly as a historically coherent construct, rather than as a body of procedure and precedent merely.  This treatment of law as an academic subject was relatively recent, albeit that commentators such as Lord Kames, asserted that law would become ‘only a rational study when it is traced historically, from its first rudiments among the savages, through successive changes, to its highest improvements in civilized society’.^[3]

We can see this happening in a famous passage from Scott’s autobiographical Ashestiel Memoir in which he expressed his admiration for Hume.  It is also a revealing description of his view of Scots law, Scots legal education in the late eighteenth century, one of Proustian length, and deserving of full quotation:

I copied over [Hume’s] lectures twice with my own hand, from notes taken in the class, and when I have had occasion to consult them I can never sufficiently admire the penetration and clearness of his conception which were necessary to the arrangement of the fabric of law, formed originally under the strictest influence of feudal principles, and innovated, altered, and broken in upon by the change of times, of habits and of manners, until it resembles some ancient castle, partly entire, partly ruinous, partly dilapidated, patched and altered during the succession of ages by a thousand attritions and combinations, yet still exhibiting, with the marks of its antiquity, symptoms of the skill and wisdom of its founders, and capable of being analysed and made the subject of a methodical plan by an architect who can understand the various styles of the different ages in which it was subjected to alteration.  Such an architect has Mr. Hume been to the law of Scotland….^[4]

Two sentences…  Syntax apart, it’s difficult at first glance to see why Scott should admire Hume as an architect of Scots law.  Reading Hume’s lectures today, one is struck by the focus upon principle and right, and the reduction of principle to rules and exemplifying cases, not all of which are digested for the student — in short, we are reading what has become the usual textbook redaction of the elements of civil and criminal law.  There is none of the rich sociological contextualising one finds in Adam Smith’s Lectures on Jurisprudence, little of the jurisprudential authority such as we have in Stair’s Institutions, and little of the wide-ranging historical detail in Gilbert Stuart’s Observations concerning the Public Law and Constitutional History of Scotland.

One reason for Scott’s admiration is probably his own experience of law up to the point of attending Hume’s lectures.  Prior to this, Scott was an apprentice Writer in his father’s office.  There, as he memorably describes it, he was immersed in ‘the dry and barren wilderness of forms and conveyances’ (Lockhart 36).  Legal processes such as those involved in conveyances, liferents, real and personal diligences, executries, the maintenance of trusts and the like, have their own logic and patterns, but they are the internal processes of legal procedure.  Working within them it is not always easy to grasp the principle behind the form; and to go beyond this to an overview of historical development is more difficult still.  For students attending Hume’s lectures what was refreshing was that the generating and guiding legal principles were organised within a framework of historical development which gave the impression of a cumulative order or progression to the law.  This was almost universally agreed upon by his students, and one of the reasons why his lecture-notes were preserved by future advocates and Lords of Session. ^[5]  For Scott, Hume’s perception of historical taxis within the law helped transform rules of legal procedure which Scott encountered as an apprentice Writer into evidence for historical change and continuity in the law.  Moreover, in this recognition of the value of Hume, Scott himself is following in a long line of Scottish historians and commentators who derived their history from investigations into the field of law and constitutional history. ^[6]  Indeed, Scott’s concept of the ‘fabric of law’ in its evolutionary sense is very close to Adam Smith’s stadial view of society.  In this regard, though, it is highly doubtful if Scott would assent to Smith’s and David Hume’s exposition of positive law as a negative virtue.  The effect of law on society and individuals, not the general progress of society, is what Scott is interested in, and in this area Scott found the concerns of natural law jurisprudence invaluable.

But the description has deeper resonances.  In this passage the ‘fabric of law’, the text, once a cogent and principled structure, is now rambling, incoherent and, Scott suggests, it is in the nature of law to become so.  The trope of law as a building – architecture as constitution – is an ancient one, and Scott uses it here to emphasise the role played by the architect Hume who is able to draw up a plan precisely because he is historically aware of its ‘various styles’.^[7]  Without such historical awareness, the building is a meaningless jumble to the eye.  But a knowledge of styles does not describe all of what the architect does.  There is also the aesthetic discrimination, the sense of judgment, which underlies knowledge of historical styles, and which is brought into play by the interpreter of law as much as by the novelist creating a palimpsest from a variety of sources – the dynamic, creative novelist that, of course, Scott was already becoming.

There are many points that arise if we compare Scott’s words to the experience of students today, but we can take four that bear on the subject of constitution and education:

1. The institutionality of the Institutional Writers can be seen as the construction of a foundation for a community of practice and principle by Scots lawyers at a specific period in the history of Scots law.  Law codes comprise genre and technology, and the concept of a set of writings codified as a printed book in the early modern period helped to crystallize the constitutionality of Scots law, but also Scots legal education too.
2. But the technology of the book is double-edged.  The diversity in publications since that period has helped to erode the constitutional status of our Institutional Writers.  Now, contemporary Scots law students have, by comparison with students in the eighteenth century, a wide array of texts on many areas of law.  It wasn’t always the case in the modern period – the publication of texts almost ceased in the period after WWII, and it’s probably the case that it was largely the writings of David Walker and T.B. Smith that kept the Scots legal publication tradition alive at this point.
3. If we compare Scott’s experiences to those of English lawyers educated and writing in the same period there is another striking contrast.  In the Scots system there is a closeness between university education and professional education in the law that is missing from England.  Glasgow’s regius professorship was established in 1713; Edinburgh had three professors – a chair in Public Law and the Law of Nature and Nations ((1707,  Civil (ie Roman) Law in 1710, and Scots Law (1722); in Aberdeen civil law had been taught at KIng’s College since 1505, I believe.^[8]  It’s a complex matter to generalise about, but it’s probably true to say that up to the point where university education became a requirement for qualification to the profession (in Scotland, 1960), there were more passages between higher education and the profession in Scotland than in England; and it may be that this, along with size of jurisdiction, is one reason for the different tenor of relationship that exists in Scotland between profession and academia.
4. Huge increases in litigation, in social complexity, in technological and commercial areas of law, have increasingly fossilized the texts of the Institutional Writers.  As a law student there was no more graphical illustration of this for me than walking past the library shelves of Session Cases, the authoritative reports of cases heard in Scottish courts, and observing through the nineteenth century line of editors (Shaw, Dunlop, Macpherson, Rettie and Fraser) the inexorable increase in volume size…  But if case reports were an almost real-time reflection of social and legal complexity, the sophistication of legal education to cope with this changing environment lagged far behind.  Hence Scott’s fondness for Hume as a guide to the increasingly complex commercial realities facing both Scots civil and criminal law.  In a sense the passage from Scott, relying on ancient metaphors of foundation and institution that stretch back into Scots law’s Roman roots, is nostalgic for a sense of order that was fast disintegrating in his lifetime – indeed had been so since at least the later eighteenth century, as the work of Adam Ferguson demonstrates.^[9]  Such nostalgia is of course a powerful presence in Scott’s fiction and poetry, his invaluable antiquarian work, and part of his conservative political views as well.
5. But if legal education in Scotland lagged behind social change (and indeed when did it ever not do so?) then it’s probably true that Scott himself was only partly aware of what had been the history of legal education in Scotland. His experiences as a student were affected by the new rhetoric of legal education that had developed in Enlightenment Scotland.  Educational practices in the three centuries previous to the eighteenth had largely been prescriptive, emphasised note taking, rote learning and memorization of principle and case.^[10].  By contrast enlightened educators such as Adam Smith, Lord Kames (one of whose texts was entitled Introduction to the Art of Thinking), John Millar, Francis Hutcheson and others focused on reasoning, and moral and ethical analysis.^[11]  Indeed Scott’s praise for Hume and his lack of praise for Smith, Millar and others is indicative of his conservatism in these as in political affairs.

Can there be a constitution for legal education that emphasises the rights and liberties of students and practitioners?  With regulatory pressures increasing, and pressures upon regulators increasing too, there is a need for such constitution-building.   Where can we find it?

I would argue, first, that we should not confuse legal education with law schools.  The first comprises cultures of practices and knowledge that while they overlap with law schools, are quite different.  As Alasdair MacIntyre pointed out, practices are quite different from institutions, particularly in Higher Education.^[12] Legal education does not depend on law schools, certainly as they are currently constructed.  When the history of law schools is viewed over, say, a century, we can see many changes and variations.  Viewed over the arc of the millennium of universities’ existence, we see extraordinary change.  We need only look to the beginnings of universities and law schools in the late eleventh century to understand that.  As I point out in this article,

Constitutionality was critical: the very first subject was Law, the course founded on the study of Justinianic law, the texts of which had been recently discovered, and which opened up radical new understandings of almost every aspect of legal relationships.

In this new gathering of scholars, entirely different from the scholastic gatherings in monasteries or cathedral schools, the students themselves ran the university, in the midst of the city.  It is worth repeating this: students ran the university. Over the next century they argued for their rights with Bologna city; they set up collective bargaining and regulatory structures by which they could exist as a corporation. They were the universitas, within the city, and with rights to travel freely to and fro. They hired and fired expert scholars and teachers (who took the hint and formed their own organisation); they organised themselves into self-sustaining groups called nationes, supported each other financially and disciplined themselves and their course structures, resources, assessments.^[13] As historians point out, they developed sophisticated systems to protect themselves from sharp practices – for example limiting booksellers’ profits on second-hand manuscripts.^[14] The result was a res publica of learning.

The historical view is a type of archaeology of what we were in the past.  Two things stand out.  First, what we have lost, in terms of student agency, in legal education since the the earliest universitas. I think we should seek a constitution for legal education as a form of ius commune, based not upon bodies of law, but bodies of educational practice and theory in legal education, and the liberation of student agency.  Look again at Scott’s description of the body of Scots law as architecture – that could also do for a description of a legal education curriculum.  But in most historical curricula, there is no mention of the learner except as blank slate.  We need to change that, and involve students much more in the critical decisions made in law schools and in learning law.  The ius should include the rights of the learner, and not just learners in institutions.  We should remember that the earliest universitas was a revolt against existing learning institutions.

Second, the ius commune needs to be a global commune.  The earliest universitas set out to be European in extent (while acknowledging what that vexed term European means to us now was a very different understanding in the eleventh century).  But having worked with colleagues and institutions in Scotland, England, Wales, Ireland, the Netherlands, USA, Hong Kong, Australia and Canada, I see the same big issues surface in each jurisdiction, with each jurisdiction’s legal education communities adopting their unique local solutions to fit their local patterns of education, institutions, politics and much else.  We teachers and facilitators need to reach out to each other more, map our dilemmas, share them and come to understand what the terms of such a constitution might involve.

1. ^[1]Probably the best general introduction but paywalled of course, is the entry in the Stair Memorial Encyclopaedia of Scots Law on Institutional Writers↩
2. ^[2]The relations between Scott and Enlightenment thinking were first explored in earnest in an article by Duncan Forbes (Forbes, Duncan. (1953).  ‘The Rationalism of Sir Walter Scott’.  Cambridge Journal 7, 20-25.  More recently aspects of these relations have been explored by Fleishman, Avrom.  (1971). The English Historical Novel: Walter Scott to Virginia Woolf.  Baltimore: John Hopkins University Press; Garside, Peter D. (1975). ‘Scott and the “Philosophical” Historians’.  Journal of the History of Ideas, 36, 497-512; McMaster, Graham. (1982). Scott and Society.  Cambridge, Cambridge University Press; and Beiderwell, Bruce. (1992). Power and Punishment in Scott’s Novels.  Georgia, University of Georgia Press.↩
3. ^[3]Historical Law-Tracts v, xi, quoted in Cairns, John. (1992). ‘The Influence of Smith’s Jurisprudence on Legal Education in Scotland’.  In Adam Smith Reviewed.  eds. Peter Jones and Andrew S. Skinner.  Edinburgh Edinburgh University Press, p.182.  Kames went on to approve Bolingbroke’s opinion that lawyers would not ‘deserve to be ranked among the learned professions’ until they had abandoned the ‘little arts of chicane’ and turned to the ‘vantage ground’ of ‘historical knowledge’ (Historical Law-Tracts xi)  The strategy here adopted by Kames and Bolingbroke is an interesting one: the movement from low to high, from menial tricks to learned profession is in their view performed only with the aid of larger historical learning.  Indeed, as Peter Stein has pointed out, ‘[w]hen Kames pleaded for reason, he was in fact pleading for a more historical approach’ (Stein, Peter. (1970). ‘Law and society in Eighteenth Century Scottish Thought’.  Scotland in the Age of Improvement.  eds. N.T. Phillipson and Rosalind Mitchison.  Edinburgh, Edinburgh University Press, 157).  Cairns points out that, in a similar strategy the Faculty of Advocates in 1760 recommended intrants to apply to the study of the law of Nature and Nations so that they would be aware of the effect that historical analysis was having upon civilian natural law traditions, particularly in the hands of philosophers such as Adam Smith (Cairns, ibid, 170).  What had previously been a corpus of polite learning, a body of ahistorical rules — law as stratigraphy — was becoming critical, investigative — law as archaeology.↩
4. ^[4]Cited Lockhart, J.G.  (1842).  Memoirs of the Life of Sir Walter Scott.  Edinburgh, Robert Cadell, 17.↩
5. ^[5]For evidence of this, see Baron David Hume’s Lectures, vol vi 395-6↩
6. ^[6]For a wide-ranging analysis of this tradition see Allan, David.  Virtue, Learning and the Scottish Enlightenment: Ideas of Scholarship in Early Modern History.  Edinburgh, Edinburgh University Press, 1993, passim.↩
7. ^[7]Compare Blackstone’s description of the law of England as ‘an old gothic castle, erected in the days of chivalry but fitted up for a modern inhabitant’ (Blackstone vol.3 268).  Scott returns to this trope a number of times in his novel, Heart of Midlothian.↩
8. ^[8]There had been a project to fund a professorship at Edinburgh University in 1589 – see Cairns, J.W. (2010). The Law, the Advocates and the Universities in Late Sixteenth-Century Scotland.  The Scottish Historical Review, 73, 2, 171-90.↩
9. ^[9]See chapter four of Transforming Legal Education, 2007.↩
10. ^[10]It may be that the comic figure of Bartolus in Heart of Midlothian can be a critique of the scholastic tradition and by extension its modes of education.  Critical commentary has assumed ‘Bartoline’ to be a parodic name redolent of the character’s florid manner.  In fact, Scott is alluding to the great Commentator Bartolus, whose Comments on Accursius’ Great Gloss of the Digest were so important to later Roman law reception in Europe.  It was, after all, the Commentator’s law, not the Corpus Iuris, which was received in fifteenth and sixteenth century Germany, whereby popular custom was subordinated to the modernised civil law.  Scott would have known this from his Civil Laws classes at Edinburgh University.  To Scott’s legal contemporaries, however, steeped as they were in the natural and positive law of the late Enlightenment, Bartolus was a crabbed Schoolman – hence the parodic use of his name.↩
11. ^[11]See Cairns, J.W., (1991).  Rhetoric, Language, and Roman Law: Legal Education and Improvement in Eighteenth-Century Scotland.  Law and History Review, 9, 1, 31-58.  Kames is an unjustly neglected figure in legal education.  His emphasis on reasoning was balanced by another book that focused on the development of ‘sensibility’ in legal education, a unique approach that was not to be revived until well beyond the nineteenth century Langdellian revolution in the US, and can be seen in the use of affect in legal education↩
12. ^[12]‘[p]ractices must not be confused with institutions. Chess, physics and medicine are practices; chess clubs, laboratories, universities and hospitals are institutions. Institutions are characteristically and necessarily concerned with what I have called external goods. They are involved in acquiring money and other material goods; they are structured in terms of power and status and they distribute money, power and status as rewards’.  See MacIntyre, A. (1985). After Virtue: A Study in Moral Theory (London, Duckworth), 181.  ↩
13. ^[13]Verger, J. (1992). Patterns. In A History of the University in Europe, General Editor Walter Ruegg. Volume 1, Universities in the Middle Ages, edited by H. de Ridder-Symoens, Cambridge, Cambridge University Press, 35-65; 47-49.↩
14. ^[14]See, eg, de Hamel, C. (2013). The European medieval book, in The Book: A Global History, edited by Michael F. Suarez, S.J. & H.R. Wooudhuysen, Oxford, Oxford University Press, 59-79; 67-8.↩