Brief history of legal education in the UK
In general terms this history of legal education can be divided into three parts. The first period begins in 1292 and continues up to the American Revolution. The focus is on the English system, since even in the late colonial period, American legal education was dependent on the English model. The next two periods are mainly American. Up to at least 50 years or so after the Revolution, there was a lot of experimentation in the United States. New institutions were developing that were unknown to England. These institutions aimed at removing the demerits of their English counterparts. The third period, ending in 1895, begins with the appointment of United States Supreme Court Justice Joseph Story to a professorship at the Harvard Law School. This period results in the firm establishment of the study of law as a science in the universities during the tenure of Dean Christopher Columbus Langdell at the Harvard Law School.
Pre – Revolution Legal Education: England
In the late thirteenth century, the need to specially educate those who had to appear before the increasingly professional courts of England became obvious. The reforms of Henry II and the complex real property law problems regarding feudalism required specialists.
Edward I’s royal directive
In 1292, Edward I issued a royal pronouncement to his judges of the common bench. According to this, they were to find and select “apt and eager” students representing each county in the area to learn the business of the courts. These students were to be based at the seat of the courts, Westminster. The earliest form of education focused on simplicity. Attending court and discussing the cases heard was considered sufficient.
Establishment of the Inns of Court
As time passed, the students, who spent their lives in that small area of London dominated by Westminster, regularly gathered together at a small number of dwelling places and began to organize. The present day Inns of Court began to take shape when masters, men experienced in litigation, were hired to give lectures to students where they lived. Gradually, groups of practitioners started working at the dwelling places, commonly known as Inns. A number of these lodgings became known as the Inns of Court. Out of these, the four most prominent ones were Gray’s, Lincoln’s, Middle Temple and Inner Temple.
Development of hierarchy at the Inns
As might be expected, control of the Inns soon passed from the hands of the true employers, the students, to those of the teachers, the master. A hierarchy developed. This was bound to happen as England was, and still is, a society which is class and status-conscious. The masters became known as benchers while the students were classified into three categories. Experienced students, known as readers, acquired the status of modern day law school teaching assistants. The second category of student, the outer barristers, was perhaps the equivalent of today’s second year law school class and their studies were dominated by participation in the moots. New students, who were taught mainly by means of lecture and observation, were assigned inner barristers. The method of legal education available and prevalent at the Inns at any given time depended on whether or not court was in session.
Imparting legal education at the Inns
When the courts were not hearing cases, the readers would give lectures covering a variety of topics. They would conduct special moots called bolts. When the court was in session, the Inns were crowded with the judges and lawyers as well as the students. In the evenings the Inn served in two ways. Those who dwelled there took part in an educational exercise – the moot court. Practice courts were held in which cases on current questions of law were presented and argued by admitted and skilled litigators with help from the students. After such practice courts, discussions were held. This joint and instructional drawing together of the judges, lawyers and students was of great importance at that time because law reports and legal literature were in an extremely early stage of development.
Admission to the Bar
An important result of the development of the Inns of Court was the profession of law becoming, a somewhat closed society. Culturally, professionally and, obviously, geographically, the legal talent of England rested in the great central courts. This gave a unique “priesthood” aspect to the English bar which, along with its benefits for England, was treated with suspicion by Americans.
Admission to the Bar was fully in the hands of the benchers and the readers. Attendance at a required number of meals was the only formal requirement, presumably to ascertain that some exposure to the moots was experienced by the prospective barrister. It should not be assumed, however, that a student’s intellectual abilities and performance at the educational activities of the Inn were not considered. Perhaps because methods for evaluation and assessment were primitive and highly subjective, few records relating to academic requirements have survived.
Several ancient principles slowed down the growth of the English legal profession in its early stages. Litigation was very personal and, since the theory of agency was just beginning to develop, the rule was to plead legal matters personally. Moreover, procedure and the swearing of oaths were very formal. They were so formal that at many times, admission to the bar was denied if the exact words pleaded and their pronunciation were incorrect. The idea was that if someone who had sworn an oath lied, God would confuse his tongue and cause a jumble of words or a mispronunciation. Under this view, it was unfair and improper to have a professional pleader appear for a litigant.
Inns – Legal education combined with intellectual endeavours
Nevertheless, the legal profession brutishly increased in importance and stature, and so did the Inns of Court, which achieved dignity during the Tudor-Stuart period (1485-1637) similar to that of a third university after Oxford and Cambridge. The Inns not only provided legal education, but also exposed students to the arts and other intellectual endeavours. It is interesting to note that the first performance of William Shakespeare’s Twefth Night was performed at Middle Temple Hall before an audience that included the Queen.
Attorneys to appear personally in Court
While the Inns of Court were schools to prepare the barristers, the practitioners of the minor legal arts, the solicitors and attorneys, had no organized educational institution. For a long time, attorneys were admitted to the Inns with the status of outer barristers. The attorneys developed partly because of the rule that a person was required to appear personally at his lord’s court if there were any legal proceedings involving him. If the various manorial courts (courts through which a lord exercised jurisdiction over his tenants) met at the same time of the year, this could be unpleasant if a person held land of several lords, a common enough situation.
It was possible to obtain royal permission to send a surrogate (acting on his behalf) to appear. There was no requirement that these surrogates, soon called attorneys, have any legal education or skills and many did not. Almost anyone, even a wife, could appear.
Appointment of attorneys – liberal approach
The Crusades, marked by the often permanent absence of the interested parties, aggravated the problem of resolving disputes in manorial courts. As a result, the approach towards granting permission to appoint attorneys became liberal. Professional attorneys – could be appointed, subject to the regulation of the courts. This is how the modern rule that an attorney is an officer of the court and not merely an employee of the client, originated. Attorneys could however, deal, only with routine legal matters.
Solicitors and the Court of Chancery
The solicitors, who have always constituted the largest class of English lawyers, developed as the Court of Chancery emerged and grew in importance. In the beginning, the solicitors were clerks in Chancery who helped litigants in drawing up papers. Because of the demands of the market, a permanent professional class of lawyers handling cases in chancery was established.
Legal apprenticeship and admission to the Bar
The attorneys and solicitors mainly obtained their legal education through the apprentice method. Legally, these apprenticeships were just like any other apprenticeship, for example, one with a baker or cobbler. They were also governed by the same legal principles. They were contractual agreements. If a person who was a party to the agreement, they were liable to be taken to court.
Although the only requirement for admission to the bar by the benchers of the Inns was proof that the student had kept twelve terms by eating the required number of meals, some students were clerking with established barristers. Even so, clerking with a barrister did not necessarily mean a formal commitment to spend definite, verifiable time in the barrister’s chambers. However, this formal commitment was required while doing an apprenticeship with an attorney or solicitor. The quality of an apprenticeship was, of course, not evaluated.
Lord Mansfield’s contribution
Although student-barristers were expected to read certain standard works, such as Littleton, Coke, Glanville and Bracton, as well as be acquainted with the Year Books, the majority of a barrister’s legal education was obtained at the courts. To provide for the needs of the students, Lord Mansfield, a born teacher, gave the reasoning behind his decisions and extensively cited cases in them. He even set aside a portion of the courtroom which these students could use exclusively. This became known as the “crib.” Incidentally, the modem phrase “crib notes” has originated from this practice as the notes taken by students were given some value as recordings of authority.
Decline of the Inns of Court
The Inns of Court, which attained maximum prominence and educational effectiveness during the Tudor-Stuart period, began to decline during the late sixteenth and early seventeenth centuries. This was a result of the common lawyers gaining a foremost position in the legal and governmental fields. By the eighteenth century, the readings and moots had declined, and the students had the freedom to do what they wished.
According to Abel-Smith and Stevens, by 1750, standards of the Inns of Court were falling. They never completely recovered from this decline. The Act of 1729 reorganized the legal education of the attorneys and solicitors who, by 1700, had merged into one body, the solicitor.
Training by apprenticeship was formally established. There was no similar reorganization in case of the barristers. This left a serious gap in English legal education because in 1750, the common law was not being formally taught or studied in any institutional environment.
Reluctance in teaching common law
Oxford and Cambridge Universities had long taught canon law (the body of officially established rules governing the faith and practice of the members of a Christian church) and civil law, but had never accepted the common law as worthy of being taught in a university. Those running the ancient colleges did not differentiate between theory and profession. They saw the common law as a trade not worthy of serious academic consideration. This however, caused no alarm among the practitioners of the common law, since they had effective control of the High Courts and they had no desire to share their control. In 1753 Blackstone commenced a series of lectures at Oxford, and was subsequently appointed Vinerian Professor there. At that point of time, it seemed that the common law would be accepted at the great universities which would begin to provide, a ground for research and discussion, though they should have done so much earlier.
Unfortunately, the successors of Blackstone chose not to give importance to common law. Perhaps this failure of the common law to finally spread roots at the universities was masked in Blackstone’s own words. These lectures were not designed for the legal profession, but, as Blackstone said, for “gentlemen of all ranks and degrees.” The sometimes staggering importance of Oxford and Cambridge as a gentlemen’s right did not help academic innovation and progress.
Retarded growth of legal education
The 120 years that followed saw a good deal of turmoil in English legal education, but little development. The Inns of Court attempted to counter the increased power and status of the solicitors by revising their entrance standards. The Inns also reduced the period between admission to an Inn and the call to the bar from five to three years for university graduates. The educational functions of the Inns were not seriously revived during this period and in nature, they remained mainly as social clubs. Admission to the bar still required no significant educational activity or examinations.
Great advocates but no great teachers
Although the system of legal education for barristers had seriously degenerated by the eighteenth century, and admission to the bar tended to be on the basis of birth and money, Reed cites three reasons why great barristers did develop. The first reason is that the wealth needed to become a barrister often made it possible to get university education as well as attendance at one of the Inns. Secondly, even though a period of clerkship was not a required for admission to the bar, it was an added edge when a barrister began to practice, and many students clerked. Thirdly, the unique English system which allowed for the solicitor, rather than the client, to select the barrister served to prune the deadwood. Solicitors wanted to win cases as much as anyone else, and they wisely channelled litigation toward the competent barristers, and away from the incompetent.
As a result of six hundred years of English legal education development, the profession, though often competent, was quite deep-seated. For barristers in particular, exposure to general education was often absent. Great advocates and judges emerged. However, there were no great teachers except for Blackstone. An anti-academic bias in the legal profession had finally established itself.
In 1846, a Parliamentary Investigating Committee examined the education and training provided for persons who were to become barristers. The Committee found the system to be inferior to the legal education provided in Europe and the United States. Recommendations were made for reform of the system. Among these recommendations were including entrance examinations for admission to the Inns and the bar. The establishment of a national law college was proposed, as well as more imparting of knowledge in the common law by the universities. The suggestions of this committee, and the numerous other commissions that came after it, were not followed. It was only in 1871 that Oxford, and in 1873, that Cambridge reformed their law teaching faculties. Even then the best law students stayed in the traditional system, as the established bar did not accept a university degree as the equivalent of practical experience.