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Liberal Ideals and Vocational Aims in University Legal Education*

Gerry Johnstone

Lecturer in Law
University of Hull
Hull HU6 7RX

<[email protected]>

* An earlier version of this paper was presented at the Social and Legal Studies Association Annual Conference, Metropolitan University of Manchester, April 1998. I am grateful to the participants in that session who provided much useful feedback. Thanks are also due to Fiona Cownie for encouraging me to write this paper and to the Journal's anonymous referees for their challenging comments on an earlier draft.

Copyright © 1999 Gerry Johnstone.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

This paper criticises two opposed tendencies in recent debates about university legal education. It is critical of those who adhere to narrow vocationalist conceptions of legal education, but also of those who - in response - retreat to an equally narrow concept of liberal education which excludes too many people and shows a harmful disdain for "practical knowledge". A fruitful way forward is to reject this conventional dualism by retrieving the more generous conception of vocational preparation found in the work of John Dewey and more recently Richard Pring. Their conception of vocational preparation has many merits and is not incompatible with what is best in the liberal ideal. Along the way, the paper exposes the contradiction at the heart of the recent ACLEC Report on legal education (the source of much current interest in these issues). I show that the ACLEC Report's recommendation that law students receive "a liberal education in the discipline of law" is wholly inconsistent with the vocationalist reasoning of the report.

Contents

1. Introduction
2. Liberal Education and Vocational Preparation

(i) Core assumptions of the idea of liberal education
(ii) Core assumptions of the idea of vocational preparation

3. The Reasoning of the ACLEC Report
4. The Inadequacy of Liberal Legal Education

(i) Standpoint for a critique of liberal legal education
(ii) Moving beyond the liberal ideal

5. Towards a Wider Concept of Vocational Preparation
6. Conclusion: Towards a Critique of the Dualism

Bibliography

1. Introduction

It is widely assumed that the main function of the university law school is to be a nursery school for the legal profession.⁽¹⁾ Those law teachers who struggle to cast off this image undertake an arduous task. It is hardly surprising, then, that some have seized eagerly at the recommendation of the ACLEC Report that:

"[T]he degree course should stand as an independent liberal education in the discipline of law, not tied to any specific vocation" (Lord Chancellor's Advisory Committee on Legal Education and Conduct 1996, p 57 - hereinafter referred to as the ACLEC Report).

Despite my aversion to narrow vocationalist conceptions of university legal education, I am less enthusiastic than some about this invocation of the idea of "liberal education". Whilst it is certainly necessary, in order to devise a satisfactory educational mission for a university law school, to draw partly upon the idea of liberal education, it is also necessary to reject certain elements of that idea and to draw partly upon the conflicting idea of vocational preparation. In particular, it is useful to draw upon the broad conception of "vocational preparation" sketched by John Dewey (1916, pp 358-74).

Before going straight into this argument, I will say something the ACLEC Report's apparent championing of the idea of liberal education over that of vocational preparation. The recommendation quoted above, which is for many the most familiar part of the ACLEC Report, actually creates a very misleading impression of the report's reasoning which is, in fact, predominantly vocationalist. To point this out is not necessarily to criticise the ACLEC Report. What we should oppose is not any conception of legal education as vocational preparation, but rather extremely narrow conceptions in which vocational preparation is equated with the mere imparting of technical knowledge and skills required for a specialist occupation. As I show, the ACLEC report contains a much broader conception of vocational preparation than this even though it remains, in certain respects, too narrow.

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2. Liberal Education and Vocational Preparation

Using the writing of Pring (1993, pp 51-66; 1995, pp 184-8) as my main guide, I start by constructing an ideal typical contrast between "liberal education" and "vocational preparation" as conventionally understood (on ideal types see Weber 1949, pp 89ff). Using this contrast, I then ask whether the reasoning of the ACLEC Report can best be described as liberal or vocational.

(i) Core assumptions of the idea of liberal education

The chief goal of "liberal education" is to develop the ability to reason, to think critically and to appreciate that which is worthy of being appreciated (Pring 1995, p 184). In order to develop these capacities, the individual has to be "initiated" into various intellectual disciplines, such as literature, mathematics, science and the arts. In the process of being initiated into such disciplines one acquires the essential concepts, intellectual skills, and habits required to cultivate the capacities of reason, critical thought and imagination. The ultimate justification for all this is that cultivating the intellect is intrinsically worthwhile and is perhaps the supreme human good (ibid, p 185). It has no other purpose and needs no further justification, although it is generally assumed that the intellectual improvement of individuals will benefit the wider society.

Liberal education ideally takes place in institutions which are insulated from the distractions of the world of business and utility. Schools and universities should ideally be like monasteries (ibid, pp 186-88, discussing the ideas of Michael Oakeshott). The control and direction of liberal education must be in the hands of those who are authorities in it, ie scholars, and "certainly not government or industry or the community at large" (Pring 1993, p 55). In liberal education, the transaction between teacher and learner is shaped only by considerations internal to the intellectual disciplines.

(ii) Core assumptions of the idea of vocational preparation

When education is conceived as vocational preparation, its chief aim is to develop competence in tasks which adults have to perform at work, home, or in the community (Pring 1995, p 187). It is assumed that the best way of developing such competence is by "doing" under critical supervision, ie learning from experience. The ultimate justification for education, thus conceived, is that it gets people ready for the world of work and life. Vocational education is justified by reference to the needs of the economy and society (which require people with certain skills, knowledge, etc.) and/or by reference to the needs of individual students (who need certain skills, knowledge etc. if they are going to find employment in the economy and cope with the demands of society) (ibid). Crucially, in this idea, "education" is not regarded as intrinsically worthwhile. Rather, its value is derived from its usefulness to the economy, to the individual, or to society.

According to this idea, the ideal place for "useful learning" to take place is in the economic, social and everyday contexts in which the skills and competencies to be developed apply (ibid, p 188). Traditionally, such learning took place through apprenticeship. However, for various reasons, traditional forms of apprenticeship, whether in specific trades or in activities such as parenting, are deemed to be no longer sufficient for developing the range of skills and competencies required of today's citizen and worker. Consequently, much vocational preparation today will need to take place in specialised educational and training institutions. However, these places of education should not be isolated from the practical world of work and life. Rather, they should be closely connected to the "real world". The control and direction of education and training, from this perspective, cannot be left in the hands of academics. Rather, employers, governments, and the community at large must be regarded as authorities on what should be learnt and on what counts as successful learning (ibid).

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3. The Reasoning of the ACLEC Report

I now want to show that, despite its recommendation that undergraduate law students should receive a liberal education in the discipline of law, the ACLEC Report primarily conceives of university legal education as vocational preparation.

The ACLEC Report's proposals for the reform of university legal education are designed, first and foremost, for the benefit of society. According to the Report, almost every aspect of people's daily lives is affected by law to some degree. Hence, people frequently require legal advice, assistance or representation. It is therefore necessary for society to produce legal professionals who are capable of providing such "legal services". Society's mechanism for producing these professionals is its "system of legal education and training", the function of which is to transform raw recruits into highly competent providers of legal services. This transformation takes place through a number of "stages". The first is usually an undergraduate law degree, in which recruits are trained in the basic techniques of legal research and analysis and taught some of the substantive knowledge and legal values which they will require. Subsequent stages complete the transformation process by supplementing this "preliminary theoretical training" with more practical knowledge and skills.

According to the ACLEC Report, both the nature of society's needs for legal services and the arrangements for meeting these needs are changing rapidly (ch 1 - unless indicated otherwise all references in this section are to the ACLEC Report). On the demand side, the extent to which law affects our daily lives is increasing significantly. More and more people therefore need - and are acquiring the means to gain access to - legal services. On the supply side, the traditional market for providing legal services is being opened up to a wider group of persons; new opportunities for providers of legal services are emerging; and a movement towards increased specialisation is gathering pace. In short, we are undergoing a "legal services revolution" (p 11). Tomorrow's providers of legal services will therefore need to possess somewhat different knowledge and skills to those required by the lawyers of today. It is therefore necessary, according to the ACLEC Report, to examine society's "system of legal education and training" to see if it is capable of inculcating in the legal professionals of tomorrow the knowledge and skills which they will require if they are to provide the wide range of high quality legal services which society will demand of them.

Such an examination, the ACLEC Report claims, reveals a number of deficiencies (pp 14-15). For example, our system of legal education fails to develop basic skills of statutory interpretation and handling of legislation, fails to impart to the vast majority of law students an understanding of civil law systems, and fails to develop in students adequate legal research skills. This suggests that a number of reforms in the "system of legal education and training" are necessary in order "to equip lawyers to respond vigorously to the challenging opportunities that the new century will throw open to them" (p 12). What does this mean for the "preliminary stage", ie the university law degree? Basically, this must contribute to the overall task of enabling future providers of legal services to take any opportunity that comes their way. Law students should receive a good general education in law through which they should acquire the broad foundations of legal knowledge and skill, and be taught transferable skills, which will enable them to think in a critical way as creative lawyers (p 55 & passim).

One chapter of the ACLEC Report - chapter four - contains a more detailed outline of ACLEC's vision of the university law degree. The overall thrust of the chapter is that the substantial regulation of the law degree by the Law Society and the Bar is not only unnecessary, but is also a positive obstacle to the development of the kind of legal education which tomorrow's lawyers will need. Few university law teachers would disagree. And most would concur with the recommendation, stated emphatically in this chapter, "that the degree course should stand as an independent liberal education in the discipline of law, not tied to any specific vocation" (p 57). But what does ACLEC mean by this?

The Report gives two quite different reasons for this proposal. At times it seems to suggest that a liberal education is the best one for inculcating the "transferable intellectual skills" which tomorrow's lawyers will need (on the concept of transferable intellectual skills see Twining 1994, p 180; for an attempt at a list of such skills see ACLEC, pp 56-7). Accordingly, a liberal legal education is of value because it is vocationally relevant to those intending to become lawyers. Elsewhere, the reason given for making the law degree a liberal education is that the majority of law students will not become solicitors or barristers, and so need a liberal education as preparation for other high-level careers (p 22). Again, the reasoning is vocational, but now the reality that the legal profession cannot absorb even a majority of law graduates is implicitly acknowledged.

Thus, a liberal legal education is advocated by ACLEC on grounds of its vocational relevance. This is striking since liberal education and vocational preparation are usually regarded as conflicting ideas. It could, of course, be argued that the ideas only appear to be conflicting and that they can be reconciled (cf Pring 1993 & 1995). But, a weakness of the ACLEC Report is that it makes no attempt at such an argument. Indeed, its authors seem to be blissfully unaware of the apparent contradiction between the idea of a "liberal legal education" which they espouse at certain points, and the vocational values which underpin the report in general.⁽²⁾

My claim, that ACLEC's perspective is in fact one of vocational preparation, can be demonstrated and illustrated further if we analyse the Report using the contrast, developed earlier, between the core assumptions of liberal education and vocational preparation.

In the ACLEC Report, the system of legal education and training is clearly regarded as being primarily about preparation for the world of work, usually as a professional provider of legal services. The undergraduate law degree is regarded as one stage in that process of preparation. The reforms to university legal education suggested by the ACLEC Report are all to do with obtaining a better fit between the skills and competencies which the legal profession requires of those who enter it and those developed in legal education. This will benefit consumers of legal services, who will have their needs better met, and law students, who will find it easier to obtain work. The ACLEC Report makes some very specific suggestions about the appropriate content of the university law curriculum. Many of these suggestions accord with the views of "progressive" law teachers. But what is important here is how these suggestions are arrived at. In the ACLEC Report, they are arrived at through an analysis of the work which tomorrow's lawyers will be called upon to do.

One persistent theme in the ACLEC Report is that university legal education should not become too removed from the "real world", which for it means the world of legal practice. It is constantly concerned to bridge the gap between the "academic" and "professional" stages of legal education. It is also concerned to bridge the gap between the law schools and "the profession" (meaning the legal profession). The reason for this is, of course, the assumption that it is in the legal profession that the skills and competencies which legal education and training seeks to develop apply.

The one respect in which the ACLEC Report might seem to depart from this vocationalist logic is in its objection to the substantial regulation of the law degree by the Law Society and Bar. The Report recommends:

"[T]hat law schools should be left to decide for themselves, in the light of their own objectives, which areas of law will be studied in depth, which only in outline, which (if any) shall be compulsory, and which optional, provided that the broad aims of the undergraduate law degree are satisfied" (p 64).

This sounds much closer to the liberal ideal, in which the control and direction of education are in the hands of academics, than the vocational perspective, in which employers must be regarded as authorities on what should be learnt. But, if we examine the report more closely we find this is not the case; the reasoning behind this recommendation is purely vocationalist. The "straightjacket of subject prescription" is an obstacle to the flexibility which law schools need if they are going to respond to changes in the world of legal services provision. The authors of the ACLEC Report are keen to place control of the curriculum in the hands of the law schools because they believe that law schools will use this control to ensure that the curriculum is vocationally relevant. They state:

"We expect that in practice law schools will respond to the market, that is to the demands made by students and the providers of legal services. The providers will be able to keep law schools informed of the areas of law which they consider to be essential or important" (p 64, emphasis added).

So, what are we to make of the Report's recommendation that the undergraduate law students should receive a liberal education in the discipline of law? What I think is meant is that a capable lawyer will need, in addition to specialised knowledge and skills, the capacities to think, to understand, and to appreciate - capacities which a liberal education seeks to develop. Moreover, once gained, these capacities could be used in other high level professions. But, to think of liberal education in terms of a specific aim, such as cultivating transferable intellectual skills, is to miss what is most important about liberal education - not that its chief aim is to cultivate the intellect, but that the cultivation of the intellect is regarded as an end in itself. This end can also have utility, but it is not valued primarily for this utility.

What is also of crucial importance in the liberal ideal is its insistence on a strict separation of the world of education from the world of training for work and business. This means something much more than the functional divide between foundational legal education and more specific professional training envisaged by the ACLEC Report. Rather, it means that transactions between teachers and learners should be shaped only by considerations which are internal to the intellectual discipline. Changes in the market for legal services must be regarded as irrelevant to decisions about the content and methods of a truly liberal legal education. Contrary to the suggestion made in the ACLEC Report (quoted earlier) a liberal legal education will not respond to the market. In a truly liberal legal education, what the providers of legal services consider to be essential or important is of no pertinence whatsoever. The demands made by students must also be ignored, since these demands are considerations other than those internal to the intellectual discipline.

The point which the authors of the ACLEC Report miss is that in a truly liberal legal education developments in the curriculum will occur only in response to developments in the intellectual discipline of law. As legal scholars develop new concepts and techniques of enquiry, and develop new knowledge of legal phenomena, the legal curriculum should change to incorporate these intellectual developments. To suggest - as the ACLEC Report does - that the legal curriculum is out-dated and needs to be reformed because of changes in the economic context (or even because of changes in the social context), is to reject the idea of liberal legal education. The fact that we are undergoing a legal services revolution is of no consequence to teachers on a liberal law degree, except insofar as this change might form part of their object of study.

Thus, the ACLEC Report conceived of university legal education principally as vocational preparation. Its recommendation that university law students should receive a liberal education in the discipline of law fundamentally misrepresents the nature of its thinking. As indicated, however, this is not intended as a criticism since to suggest that universities should provide a purely liberal legal education, in which concern for vocational preparation is eschewed, would in my view be a mistake.

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4. The Inadequacy of Liberal Legal Education

Although there is much of value in the idea of liberal legal education - especially its refusal to reduce the valuable to that which is conventionally regarded as useful - there is also much to be criticised. A comprehensive critique is not possible here. Instead, I will confine myself to a few points which I regard as particularly relevant to the debate about legal education.⁽³⁾

(i) Standpoint for a critique of liberal legal education

First, without ever trying to set out a blueprint for a university legal curriculum, I will set out a few general principles which I think ought to be followed.

1. It is not the sole purpose of a law degree to provide part of the education and training people require in order to become professional lawyers. Most obviously, this is because university legal education should seek to develop a critical understanding of the law machine - including an awareness of the social functions that it actually performs. But, in addition, university law schools should seek to turn law students, not just into more able lawyers but into more able persons.⁽⁴⁾ University legal education should seek to promote personal development by cultivating knowledge and understanding, intellectual virtues, imagination, intellectual skills, self-reflection, moral virtues and habits, a capacity for social and political involvement, and a sense of responsibility for the values one espouses and the relationships into which one enters (see Pring 1995, pp 128-31 for a more detailed discussion of these aspects of personal development). Some of these capacities may make one a better lawyer or more able for other high level careers. But, they might not and that is not their value. Rather, personal development is an educational and social value in itself.
   
2. The potential subject matter for university legal education is the entire world of law. Of course, no single law school can teach students about the entire world of law, so choices need to be made. The crucial point is that such choice should be made consciously and should not be based upon an uncritical adherence to convention. In particular, any individual legal curriculum should seek to capture some of the diversity within the legal world. A university legal curriculum should seek to develop more than an understanding of case law technique, techniques of statutory interpretation, and some core legal concepts. It should also seek to develop an understanding of a wider range of practical legal knowledge. What do I mean by "practical legal knowledge"? Quite simply, what I have in mind is the legal know-how required to operate intelligently within a world in which legal regulation figures enormously. The most obvious example of this is the knowledge of "how to do things with rules" (Twining and Miers 1976) which, surprisingly, very few undergraduate law students develop to a sophisticated level. Just a few other examples would include, how to handle disputes, how to judge the weight of items of evidence, how to be an advocate (cf Kafka 1935, ch 7), how to set up a system of accountability within an organisation, and how to avoid legal trouble when carrying out any activity. Anyone familiar with the scholarship relating to any of these questions will know that developing such know-how involves much more then developing "mere" technical skills and knowledge. Rather, it can involve one in the most profound historical, ethical, sociological and legal inquiries. In fact, I would go so far as to say that such practical knowledge is of equal intellectual interest to the knowledge of legal principles, rules and concepts which still tends to monopolise the attention of law teachers and students.
   
3. Part of the aim of university legal education should be to create a better society. It can contribute to this by ensuring that the lawyers of tomorrow have appropriate knowledge and skill, including an understanding of the moral dimension to legal thought and action (cf Economides 1998). However, legal education can also help to create a better society by disseminating an understanding of law and its functions in social life much wider than is currently the case.
   
4. As indicated, I think that university law schools should be concerned to make legal knowledge, thus conceived, intelligible to as wide a group of persons as possible. Such knowledge is of value to a much wider group than those with their eyes on a career as professional providers of legal services. There are, of course, enormous resource constraints on the dissemination of legal knowledge. And very few of those fortunate enough to get into higher education will want to spend any of the short time available to them studying law. But these constraints should be recognised for what they are - it should not be regarded as natural that a law degree is only for those intending to become barristers and solicitors.
   
5. University legal education should be made interesting. This is not so obvious as some might think. One often hears that certain parts of the law are boring, but must be learnt anyway if one is to become legal educated. I thoroughly disagree with this view. Things are not inherently boring or interesting; people find them boring or interesting. Whether people find a particular thing or activity boring or interesting depends, to a great extent, on their level of understanding of its meaning, and that is usually enhanced by an understanding of its wider context. To take just a simple example, a painting which might have little interest to the majority of people can be fascinating for those who understand the artistic tradition from which it came, and especially so for those who know something of the wider cultural context in which that tradition is articulated (Pring 1995, p 120). And, lest this seem like a high-brow example, the same applies to a car or a truck or even an elevator.⁽⁵⁾ What should be quite clear from this is that I do not have in mind the consumerist model of education that we are increasingly heading for, in which student choice is glorified. Rather, I mean that a fundamental concern must be to help law students find greater interest in what they are studying, and this is achieved by continuously directing them towards its broader meaning.

(ii) Moving beyond the liberal ideal

Let us now look at some ways in which a liberal legal education would further or hinder these goals.

1. Personal development: The idea of liberal education is helpful in getting across the point that a law degree is not simply initial preparation for those intending to be professional lawyers. As J. S. Mill asserted, drawing upon the liberal ideal, the object of universities "is not to make skilful lawyers, or physicians, or engineers, but capable and cultivated human beings" (Mill 1867, quoted in Pring 1995, p 184). However, contrary to Mill, it is not quite clear that a liberal legal education would accomplish the goal of making people better persons. In some ways it might assist in that goal, in other ways it might hamper it. Becoming a better person involves developing a whole range of capacities. Some of these are intellectual: development of powers of understanding, imagination (eg problem-solving), intellectual skills (pursuing knowledge through disciplined inquiry), and intellectual virtues (such as openness to new ideas and scepticism). A liberal legal education would be good at developing these. However, there are other aspects of personal development which a liberal legal education would tend to ignore or even denigrate, eg habits of self-reflection, living one's life in accordance with carefully thought through ideals, knowing how to participate in and influence social activities, and an ability to relate to oneself and others as persons (Pring 1995, p 129). A liberal legal education would develop one side of the person, possibly at the expense of other aspects, and this - as philosophers such as Husserl have reminded us - can have very harmful consequences (see Kundera 1988, pp 3-4).
   
2. The entire world of law/practical knowledge: One of the most serious inadequacies of a liberal legal education is that it would exclude certain types of knowledge, most importantly "practical knowledge". From the narrow vocationalist assumption that legal education should develop knowledge, skills and attitudes necessary to operate effectively within the world of professional legal practice, we get the opposite: practical knowledge and skills should have no place, or at most a marginal place, in university legal education. If these need to be acquired they can be picked up elsewhere. The problem is that when they are taught elsewhere they tend to be taught in the most narrow vocationalist and boring fashion - as mere technical instruction. The intellectually fascinating questions which might be posed about, for instance, the practical problem of how to handle a dispute are seldom examined in any detail within legal education or training. They are regarded as too practical for the liberal law degree and too intellectual for vocational training. Hence, some of the most interesting questions about law get lost between the two poles of liberal education and vocational training.
   
3. Creating a better society: Proponents of liberal education tend to assume that, although education should not be shaped by narrow utilitarian concerns, liberally educated persons will nevertheless benefit the society in which they live. However, it is not entirely clear that this is the case. Certainly, people with the knowledge and skill that a liberal legal education would develop could be a benefit to society. But other attitudes cultivated by a liberal education - such as disdain for practical involvement - may equally render them unwilling or unable to participate in socially beneficial action.
   
4. Widespread dissemination of legal knowledge: The narrow vocationalist attitude tends to exclude from university legal education all but a tiny minority: those intending to become professional lawyers. The idea of liberal legal education would help to expand this. But such an education would still exclude a great many people (including many of those intending to become professional lawyers). Its revere for certain kinds of knowledge, accompanied by its disdain for other kinds, ensures that becoming legally educated, in the liberal fashion, will happen only to those with a taste and aptitude for the kinds of knowledge cherished by the liberal ideal.⁽⁶⁾ Very few will be initiated into the discipline of law as conceived by the liberal ideal. The problem is that the liberal ideal has nothing to say about the legal education of those who are not initiated.
   
5. Interesting legal education: I'm sure that most of those who adhere to the idea of liberal legal education would agree that legal education should be made more interesting. Bradney's (1999) "Leavisite" reading of the case of Donoghue v Stevenson [1932] AC 562 exemplifies how interesting it can be. But it is important to be quite clear that, for the liberal ideal, whether or not a learner is interested or bored with certain kinds of knowledge is of no relevance to the decision about whether it is worthwhile (Pring 1995, p 120). What makes knowledge worthwhile is not its interest for the learner but its capacity to develop understanding, critical thought and imagination. Hence, a liberal legal education would tend to be very teacher-directed. From the liberal perspective, those already initiated into the discipline of law are in the best position to judge what is worthwhile - those not yet initiated simply do now have the education to be able to discern what is worthwhile. What this seems to exclude is any attempt to develop the interests of the learner. For example, if a group of students show interest in client counselling or mediation skills, would it not be better, rather than dismiss these as practical and not worthwhile in a liberal law degree, to seek to make such activities more satisfying for them by advancing their understanding of their histories and cultural limits and possibilities.⁽⁷⁾ The problem with the idea of a liberal law degree is that it perpetuates the bias against the practical and hence ensures that it will continue to be taught (outside the liberal law degree) in a drab, purely technical way.

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5. Towards a Wider Concept of Vocational Preparation

Having dismissed both the narrow vocationalism adhered to be so many involved in legal education and criticised the idea of a liberal law degree, are there any alternatives? I suggest that one fruitful way forward is to develop a much broader and generous notion of legal education as vocational preparation - a notion which can be reconciled with what is of value in the idea of liberal legal education. A good guide to such a task is John Dewey (1916, pp 306-20) who, as a central part of his political and educational philosophy, sought to eradicate the distinction between liberal and vocational aspects of education and, in the process, radically reconsidered the meaning and role of education's vocational aspects (Carr and Hartnett 1996, pp 54-66).

Politically, Dewey was concerned to re-assert the values of classic democratic theory - such as belief in the desirability of widespread public participation in all aspects of political and social life - against the increasingly influential scepticism towards these values which was to claim for itself the label of "realism" (ibid, pp 54-6; see also Westbrook 1991; on the struggle for the meaning of democracy see Barber 1984; Arblaster 1987; & Held 1996). A key requirement for building a society sustained by classic democratic values was a fundamental reform of education (Carr and Hartnett 1996, p 54). The existing system, in which a small elite received a liberal education, whilst the mass of ordinary people received at best a narrow "vocational training" designed to adapt them to the existing industrial regime as disciplined subjects and effective workers, had to be displaced. In its place, Dewey advocated a form of democratic education that would be both liberal and vocational (ibid, pp 63-4). In arguing for such a system, he sought to recover the full political and social meaning of "vocation" and the vocational aspects of education.

Dewey argued that we should cease thinking of a vocation as a specific job or "trade". Rather, a vocation is an ordering of our life's actions in such a way that they become meaningful to us and useful to other members of the community. In Dewey's words:

"A vocation means nothing but such a direction of life activities as renders them perceptibly significant to a person, because of the consequences they accomplish, and also useful to his associates" (Dewey 1916, p 307).

Consequently, the opposite of a vocation is not leisure, but aimlessness and parasitic dependence on others (ibid).

Crucially, Dewey criticised the notion that each person has just one vocation (ibid). So, for instance, nobody is lawyer and nothing else. A person may have a special career as a lawyer, but will also be a member of a family and various other associations, and will participate in other organised activities. To let one special vocation become too dominant is dangerous; it leads to us becoming undeveloped as human beings. Moreover, contrary to those who believe that increased specialisation always makes us more efficient in the activity in which we specialise, Dewey insisted that over-specialisation renders us inefficient (ibid, p 308). This is because there is more to being efficient in a vocation than technical accomplishment. Rather, our efficiency in a vocation will be determined, in large part, by the breadth of experience we bring to it. This seems fairly obvious to most of us in the case of say the artist or novelist, but it is equally true of the lawyer. People certainly need technical knowledge and skill to be good lawyers, but they also need to understand the meaning of the pursuit of law and such understanding is impossible unless we devote time to other vocations. It follows that vocational education cannot be restricted to teaching the technical knowledge and skill required for a single vocation. Rather, one of its aims must be to safeguard against the tendency to over-specialisation, for example, to ensure that those who practice law do not become merely the lawyer (ibid). Education which is geared towards developing technical efficiency in one specialised future pursuit is not vocational education at all, it is "trade education". Not only does "trade education" fail to prepare people for their variety of vocations, it may not even succeed in making the person better at that trade (ibid, p 316).

That being said, at some stage, a person should decide (after being educated sufficiently to make such a momentous decision) that they may be fitted to a particular occupation, - a distinctive vocation through which they can happily and effectively support themselves and their dependants and serve the wider community. They might, for instance, decide they are fitted to a distinctive career as a lawyer. Hence, provided they are really fitted to that occupation they will have to begin, at some point in their education, devoting a large chunk of their learning to the study of legal phenomena including technical legal knowledge and skill. What guidance can we derive from Dewey about the teaching of such things, other than that we should ensure that they do not become too dominant in the person's education.

First, we should harness the educational opportunities that arise when people pursue a legal career through legal education. Against the tendency, found frequently in the discourse of liberal education, to bemoan the philistinism of people who pursue education not as an end in itself but as a means to a career, we should recognise that vocational aims can create favourable conditions for education. In particular, it can give a person's education a sense of purpose and direction which is crucial to sustaining interest and stimulating thought. It is worth quoting Dewey at some length on this. He writes:

"An occupation is a continuous activity having a purpose. Education through occupations consequently combines within itself more of the factors conducive to learning than any other method. It calls instincts and habits into play; it is foe to passive receptivity. It has an end in view; results are to be accomplished. Hence it appeals to thought; it demands that an idea of an end be steadily maintained, so that activity cannot be either routine or capricious. . . .

A calling is also of necessity an organizing principle for information and ideas; for knowledge and intellectual growth. It provides an axis which runs through an immense diversity of detail; it causes different experiences, facts, items of information to fall into order with one another. The lawyer . . . has a constant working stimulus to note and relate whatever has to do with his concern. . . . The vocation acts as both magnet to attract and glue to hold. Such organization of knowledge is vital, because it has reference to needs; . . . No classification, no selection and arrangement of facts, which is consciously worked out for purely abstract ends, can ever compare in solidity or effectiveness with that knit under the stress of an occupation; in comparison the former sort is formal, superficial, and cold" (Dewey 1916, pp 309-10, emphasis in original).

Nevertheless, it remains crucial to guard against the tendency to see vocational learning as mere training for a trade. In particular, even at the level of higher education in law, where students have decided the direction in which their further education is to go, it should be ensured that this sense of direction remains as general and rough as possible. (In this context the ACLEC Report says some wise things about the dangers of over-specialisation in early stages of legal education - even if the reasons it gives for this advice tend to be more narrowly vocational). It is important that early preparation for a vocation be indirect and should facilitate a continuous readjustment of aims and methods.

Above all, legal education should not be reduced to technical instruction in the arts of lawyering, as such instruction will not develop an understanding of the intellectual and moral content of a career in law. All occupations have potential intellectual and moral interest (ibid, p 314). This potential must be realised and this is the principle task of vocational education. In the case of law, this means that legal education - conceived as vocational preparation - should include at least the following: a critical study of what Berlins and Dyer (1986) call "the law machine"; a critical study of the historical background to the present condition of the law machine; studies of how legal practices interact with wider socio-economic structures, strategies of power and cultural sensibilities (cf Garland 1990); and studies of ethical issue in legal conduct (Economides 1998).

Crucially, a vocational education in law should not be perceived as an adjunct to legal practice as it currently exists. One of the points of emphasising the value of law as vocational education - as opposed to trade training or liberal education - is that vocational education can be a potent means of transforming the world of legal practice. Vocational legal education, broadly conceived, would be as much about developing an understanding of what legal practice can become as of learning the knowledge and skills required to operate the existing law machine. Law has always contained within it the ideal of making the lives of others better worth living. The reality, of course, is often very different. Too many pursue a career in law solely for the money reward that accrues, and so end up as "hired guns" placing their technical expertise in the hands of the highest payer, regardless of other considerations. As a result, the law machine perpetuates social inequalities rather than living up to its higher ideals, and lawyers deprive themselves of opportunities for deeper forms of satisfaction.

A vocational legal education, in Dewey's sense, would attempt to develop in students a broader view of the cultural and moral possibilities of law. One way of doing this would be include, as a core component of university legal education, studies of ethical issues in legal conduct, in which the ethical implications of different conceptions of the lawyer's role would be explored (again the ACLEC Report, to its credit, recommends this). As well as looking at the history of thinking about law and ethics, questions concerning what the role of "legal adviser" or "legal advocate" ethically entails, the moral implications of different ways of settling disputes, and the social impact of different ways of organizing and funding legal services, would be central to such study (for detailed discussions of these issues see Economides 1998). Hence, part of the competence required for legal practice, which a vocational legal education would seek to develop, would be an understanding of the social and ethical bearings of the law machine (Dewey 1916, p 317).

Top | Contents | Bibliography

6. Conclusion: Towards a Critique of the Dualism

One important feature of Dewey's conception of vocational education is that, compared with the more usual narrow conceptions of vocational training, it is much easier to reconcile with the idea of liberal education. Indeed, he argues that what is often called liberal education is in fact one form of vocational preparation (Dewey 1916, pp 312-3). In the past, he writes, "education has been much more vocational in fact than in name". The so-called liberal education of the dominant classes was essentially vocational in that it was preparation for conspicuous idleness, or for teaching, or for leadership. Because these activities were regarded as essentially cultural, they were not thought of in vocational terms. But this involved overlooking the cultural possibilities of other employments.

Dewey's attempt to widen our understanding of vocational preparation puts in question the assumption that liberal education and vocational preparation are irreconcilable. For Dewey, the difference between the two is not so sharp, and is of a different nature, than is commonly supposed. This should lead us to ask how the dichotomy appeared in the first place, and with what cultural assumptions it is articulated. As this is really the subject of a paper in its own right, I will conclude with no more than a brief indication of the direction in which we might conduct such an investigation.

In The Professional Task in Welfare Practice (1967), Peter Nokes links the distinction between liberal education and vocational preparation to the wider dualism between involvement and detachment, and he explores the philosophical and cultural assumptions underpinning and surrounding this dualism (ibid, pp 114-21). He shows how, in Platonic thought, detachment is the prerequisite to sound thinking. In order to appreciate true reality it is necessary to withdraw from day to day life - from the noise of the marketplace into something like a monastery. Hence, we get a distinction between university and life. This leads to, and is articulated with, other distinctions between theory and practice, between pure and applied knowledge, and crucially between thought and action. However, in the Platonic scheme, the world of detached learning can be only for the wise few. The vast majority must "train" for less noble occupations. And indeed, throughout its history, liberal education has been tailored to the needs of a small intellectual elite. The Platonic theory of knowledge is attractive to those of aristocratic tastes.⁽⁸⁾

This dualism has deleterious consequences both for liberal education and vocational preparation. Liberal education excludes valuable forms of knowledge, especially "practical knowledge" which it hardly recognises as a form of knowledge. It also tends to be unable to pose questions about the institutions which sustain the liberal ideal. On the other side, the cultural possibilities of careers other than those pursued by beneficiaries of a liberal education tend to go unrecognised. This has the result that those who are trained for those careers are seldom taught about their cultural possibilities. Vocational education becomes narrow and technical. This, in turn, reinforces the notion that it is of little cultural interest and not really education. The adherence to a pure notion of liberal education creates the very space in which narrow systems of vocational training develop.

Bibliography

Arblaster, A (1987) Democracy (Minneapolis: University of Minnesota Press).
Barber, B (1984) Strong Democracy: Participatory Politics for a New Age (Berkeley: University of California Press).
Berlins, M & Dyer, C (1986) The Law Machine (first published 1982) (Harmondsworth: Penguin).
Bradney, A (1999) `Liberalising Legal Education' in Cownie, F (ed) The Law School (Aldershot: Ashgate).
Brownsword, R (1999) `ACLEC and the Idea of Liberal Legal Education' in Cownie, F (ed) The Law School (Aldershot: Ashgate).
Carr, W & Hartnett, A (1996) Education and the Struggle for Democracy: The Politics of Educational Ideas (Buckingham: Open University Press).
Dewey, J (1916) Democracy and Education: An Introduction to the Philosophy of Education (New York: The Macmillan Company).
Economides, K (ed) (1998) Ethical Challenges to Legal Education and Conduct (Oxford: Hart Publishing).
Garland, D (1990) Punishment and Modern Society: A Study in Social Theory (Oxford: Clarendon Press).
Halmos, P (1978) The Faith of the Counsellors (first published 1965) (London: Constable).
Held, D (1996) Models of Democracy (second edition) (Cambridge: Polity Press).
Hirst, P & Woolley, P (1982) Social Relations and Human Attributes (London: Tavistock Publications).
Kafka, F (1935) The Trial. (Penguin edition used).
Kundera, M (1988) The Art of the Novel (London: Faber and Faber).
Lord Chancellor's Advisory Committee on Legal Education and Conduct (1996) First Report on Legal Education and Training (London: ACLEC).
MacFarlane, J, Jeeves, M & Boon, A (1987) `Education for Life or for Work?, 137 New Law Journal 835-6.
Mill, J S (1867) `Inaugural Lecture at the University of St Andrews', in Cavanagh, F (ed) (1931) James and John Stuart Mill on Education (Cambridge University Press).
Nokes, P (1967) The Professional Task in Welfare Practice (London: Routledge & Kegan Paul).
Pavlich, G (1996) Justice Fragmented: Mediating Community Disputes under Postmodern Conditions (London: Routledge).
Pring, R (1993) `Liberal Education and Vocational Preparation', pp 49-78 in Barrow, R & White, P (eds) Beyond Liberal Education: Essays in Honour of Paul H. Hirst (London: Routledge).
Pring, R (1995) Closing the Gap: Liberal Education and Vocational Preparation (London: Hodder and Staughton).
Twining, W (1994) Blackstone's Tower: The English Law School (London: Sweet & Maxwell).
Twining, W & Miers, D (1976) How to do things with Rules (4th edition published in 1999 by Butterworths) (London: Wiedenfeld & Nicolson).
Weber, M (1949) The Methodology of the Social Sciences (New York: Free Press).
Westbrook, R (1991) John Dewey and American Democracy (New York: Cornell University Press).
White, R (1986) `The Anatomy of a Victorian Debate: An Essay in the History of Liberal Education' 34: 1 British Journal of Educational Studies. 38-65.

Footnotes

(1) See Twining (1994, ch 3) for a survey of different ideas about what law schools are for. He discusses the perceptions of law students at pp 74ff. Bradney (1999), drawing on MacFarlane et al (1987), points to a bias towards liberal educational objectives amongst academics in university law schools. However, if we look, less at responses to surveys, and more at the everyday discourses and practices of academic lawyers, a rather different picture emerges. If we observe things like careers talks organised by law lecturers, law faculty noticeboards, open days, extra-curricular activities regarded as important, justifications given for the importance of proposed new subjects, and so on, it is difficult to avoid the impression that the majority of university law lecturers are still deeply attached - whatever they say - to a narrow vocationalist image of university legal education.
(2) It might well be the case that individual members of the Lord Chancellor's Advisory Committee were aware of the contradiction. It is possible that individual members of the Committee were committed to the ideal of liberal education, but compelled, by their terms of reference, to present their arguments in terms of vocational aspirations. My concern here is simply to expose the contradiction, not to explain how it came about.
(3) My thinking about these issues owes much to the excellent discussion of educational aims and values in Richard Pring's book, Closing the Gap (1995).
(4) This point is also insisted upon by Brownsword (1999) - although he uses the term "citizens" rather than "persons". This terminological difference does not, I think, represent any significant disagreement. In particular, for me, becoming "a person" is inconceivable outside of social groups (see Hirst and Woolley 1982).
(5) Trucks and elevators have been the subject of fascinating television documentaries - fascinating precisely because they revealed the cultural significance of what at first sight seem, to most of us, to be quite drab items.
(6) In an excellent chapter on "education and knowledge", Pring (1995, pp 137-60) discusses work which draws distinctions between different kinds of knowledge (eg common-sense, theoretical and practical) and different forms of knowledge (eg mathematical, historical, aesthetic, ethical). The liberal ideal would tend either to classify certain kinds of knowledge, such as practical know-how, as not knowledge at all or it would give it low status in a hierarchy of knowledge. Without going into the details of this complex debate, the point I simply make here is that these "denigrated" kinds of knowledge should be recognised as knowledge and regarded simply as different from, rather than superior or inferior to, the kinds of knowledge prioritised in the liberal ideal.
(7) Cf the study of counselling in social work by Halmos (1978). The scholarly literature on mediation is huge, but not greatly used in legal education (see, for example, Pavlich 1996).
(8) This is not, of course, meant to suggest that the concept of liberal education we possess today has been inherited directly from the Ancient Greeks. In particular, the idea underwent a fundamental transformation in the second half of the nineteenth century, as numerous thinkers attempted to reconcile the ideals of liberal education with the demands of an increasingly industrial society (see White 1986).