By Abhinav Mehrotra
The debate between practical and theoretical aspects of legal education has been growing. In this context, the norms surrounding legal pedagogy and course curriculum, along with ensuring the ethical and moral development of the students, need to be re-emphasised.
A recent statement by Chief Justice of India NV Ramana on the need to introduce practical courses for law students has pushed the discussion further. He emphasised that very few students who graduate from the National Law Schools are joining litigation or advocating public causes and practicing at the district level.
So what exactly are the tasks performed by a lawyer? In simple terms, according to a 1992 report of the American Bar Association, called the MacCrate Report, the work of a lawyer revolves around analysis of the facts of a client’s case, research of the laws involved, counselling the clients on the options available and negotiating disputes before or outside the court.
Some of the foremost concerns are lack of experience with routine legal tasks and court procedures, little or no understanding of how to cope with real life fact situations and the need for more exposure to non-legal problems, such as developing healthy working relationships and office management.
What needs to be understood is the physical setting of a university focusing on legal studies in order to ascertain the feasibility of practical training for students. Unlike other practical courses like medicine whose course curriculum requires it to be in close connection with practical aspects, the situation is different when it comes to law schools. Their lecture rooms are not designed in accordance with courtrooms and law offices. However, they have moot court rooms and the provision of internships every six months. These add practical dimension to the course as students learn the skills of drafting, researching and visiting courts at the district and higher levels. In general, universities are considered epitomes of knowledge. Further, evaluating requires the assessor to assess the application of knowledge in a hypothetically created situation.
Despite certain limitations, law schools have introduced courses related to the process of litigation such as pleading and practice, trial practice, and moot courts that give a glimpse of the practical aspects involved in the profession. In addition, there has been widespread expansion of clinical programmes in law schools that aim to offer practice-oriented courses dealing with actual legal problems and institutions. The rationale behind these courses is based on “learning by doing”. It is composed of three elements—professional skills training, learning through experience and imparting professional values of providing access to justice.
In this context, the collaboration between teachers assumes significance as it helps them to reflect on their objectives, methods and assessment criteria, i.e. the use of strategies and learning models to improve comprehension and efforts to raise awareness among students that requires modification in the content, approach, structures and strategies. This becomes clearer through the definition given by UNESCO of inclusion, which is defined as “a process of addressing and responding to the diversity of needs of all learners through increasing participation in learning, cultures, and communities, and reducing exclusion within and from education”.
It was in 2002 that the Law Commission of India recommended setting up of four colleges in each region with the aim to imparting professional training to law teachers. In a similar vein, the Bar Council of India amended its rules in 2008 for professional development and other legal education-related needs and suggested the creation of a “Directorate of Legal Education”.
The larger question about law teachers is how to develop the aspect of cooperation between themselves as a group so that the students can benefit from their combined experience and at the same time, reflect upon the issues that might surface in achieving such cooperation. For example, teachers cooperating with each other identify lack of time for planning and implementation, resistance from colleagues and increased workloads and responsibilities as major obstacles to successful implementation of cooperative teaching. Further, working together requires the teachers to learn to work and teach together. That takes time and requires the teachers to overcome differences in their philosophy, pedagogical style and background, as well as concerns about working with and being observed by another professional.
The core of the issue is the multifaceted growth of law that has resulted in the introduction of new fields, such as environmental law and consumer protection. As a result, much more substantive law has to be taught and less time is available to devote to practical and skill-oriented aspects. This aspect is accompanied by varied interests and goals of the students that make it difficult to create programmes of practical instruction. In addition, there is the high financial cost of practical training and the loss of time which would otherwise be devoted to more theoretical study.
From an international perspective, the Carnegie Foundation had issued a report in 2007 titled “Educating Lawyers: Preparation for the Profession of Law”. The report emphasised that legal theory has been overemphasised, while practical skills and development underemphasised. To illustrate, the report refers to the case study method where it states that students are deprived of their sense of fairness and justice and are made to view the actors involved from legal rules and principles and not from the real world context.
At the same time, it emphasises inculcating a high sense of moral and ethical identity that would contribute to the growth of the profession itself. The thrust of the report is to contextualise and humanise legal education and integrate clinical education into legal theory.
It is therefore clear that there is a need to bridge the gap between theory and practice. However, the practical aspect of implementing such changes needs to be considered. Some suggestions have also been made in the Carnegie report that include focusing on writing and research classes in the overall curriculum; increasing the importance of classes on negotiation and developing alternative dispute resolution.
—The writer is a Lecturer at OP Jindal Global University and holds an LL.M in International Human Rights Law from the University of Leeds