Legal education: Two solitudes

By Dr. Ian Holloway, Q.C. January - February 2013

Law societies and law faculties both need a change in attitude when it comes to legal education.

Legal education: Two solitudes

Few more enduring metaphors have been offered for the Canadian experience than the one coined by Hugh MacLennan in his eponymous novel. Whether it is used to describe relations between Quebec and “the rest of Canada”, or to capture the relative invisibility of the Aboriginal peoples to urban Canadians, or even to typify the divide between Bay Street and Main Street, there aren’t many formulations as good at instantly conveying meaning in our country than to speak of two groups sharing space, but living in communal isolation. That is why the most apt way to describe relations between the legal profession and Canadian law schools today is to say that, just like MacLennan's characters, we live in two solitudes.

This is in some ways a funny thing to say, for all law schools today — even the most “theoretical” ones — devote a tremendous amount of energy to cultivating alumni relations. And every Canadian law dean will tell you that his or her school simply could not operate without the willingness of individual members of the bar to pitch in, generally for little or nothing in the way of pay, to teach courses and to coach moot teams and to serve on career panels and the like. And in some of the provinces, the law deans have the status of ex officio benchers of their law societies. But all of this notwithstanding, the reality is that institutionally, the bar and the academy operate quite separately from one another. The separation is not merely structural; it is attitudinal.

Dr. Ian Holloway, Q.C.

Dr. Ian Holloway, Q.C.

The reflexive justification for state of affairs — the one that you will hear from law society president and law dean alike — is that the two entities have different missions. Law schools exist to prepare people to enter the profession, while law societies exist to regulate the profession in the public interest. Fair enough. But a statement like this misses the forest for the trees. For no one who seriously thinks about the rule of law can fail to appreciate that that the two missions are so deeply intertwined that it is fatuous to imagine that one can succeed without the other.

Take, for instance, the debate about the future of the articling system. It is plain that the recent actions of the Law Society of Upper Canada will have a significant impact upon what, and how, law schools teach. Likewise, how law schools approach their educational mission will play a determinative role in how well the new two-track system for bar admission succeeds. Yet in formulating its proposal for change, the LSUC acted without the direct involvement of law schools. It is true that the LSUC met with the deans. But this was no different from the meetings it held with other “stakeholders”. With all respect to the benchers, with respect to the preparation of students for admission to the bar, the law schools should have been seen as rather more than an interest group.

The same can be said for the recent moves by the Federation of Law Societies of Canada to determine the content of the “approved” Canadian common law degree. Of course it is ultimately the responsibility of the law societies to determine the minimum educational standards for admission to the profession. But surely, if anything begged to be considered a joint venture, it would have been determining the shape and content of a university degree in law. Yet it wasn’t. Some individual law deans were involved (and continue to be involved in the implementation), but the agenda was driven by the profession alone, without acknowledgment that the law schools actually know something about educating lawyers. 

"Take, for instance, the debate about the future of the articling system… in formulating its proposal for change, the LSUC acted without the direct involvement of law schools."

In fairness to the bar, it’s a two-way street. When law schools engage in large-scale curricular reform efforts they may consult with individual lawyers, but they generally don’t consult with the profession per se. Likewise, when universities carry out their periodic reviews of their law schools, it is seldom the case that a practising lawyer is included as a part of the review team. And so on, and so on.

The common law is a system which privileges history. By its very nature, it leads us to be captive to the past — even when the actual events of the past are themselves forgotten. In the case of legal education, we remain scarred by the extended bout of warfare over control of legal education that took place in the 1940s and 50s between the late Cecil “Caesar” Wright, the dean of law at the University of Toronto, and the LSUC.

What began as a family tiff evolved into civil war, and then descended into full-blown internecine combat. The end result was the model that we have today: a supposedly divided responsibility for professional training, between a three-year university JD, followed by a period of practical apprenticeship (ie, articling). To borrow a Middle Eastern notion, peace was found through a two-state solution. The two solitudes came to exist.

Convention in the law schools involves a certain amount of triumphalism — and occasionally a tinge of hubris — in recounting the story, for it involved a climb-down on the part of the benchers, who themselves were guilty of the worst sort of arrogance in the way in which they dismissed the notion of university-based legal education. The truly amazing thing, though, is that the two-state solution came to be understood as the national norm, when in fact the history of every other common law province was quite different. As with so many things in the Canada of those days, the Ontario experience was accepted as the national default.

So what?

Well, we all know the legal profession today is in a period of tremendous stress. The stresses — and the stressors — are multi-faceted. Yet they all boil down to a matter of demand and supply. What sorts of legal services do today’s clients require? And how is the profession to supply them? As soon as one formulates it this way it becomes obvious that we’re in this together. No one imagines that the substantive solutions will be easy to formulate. And the substance will seem like child’s play compared with changing the attitudinal consequences of more than half a century of behaving like two solitudes. But do so, we must. The future of the rule of law in Canada demands it.

Dr. Ian Holloway is the Dean of the Faculty of Law at the University of Calgary.
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