Introduction for Legal Education in the Western World

Introduction

Legal education is often seen as a minor field of study. The term broadly refers to understanding how young people can be prepared to work in legal professions, how ideas about the law are transmitted, and how young people come to know the language, fundamental legal concepts, and terminology used in the discipline of law. This book argues that the study of legal education is much larger than just pedagogy. Legal education is linked to the law as a way of ordering society and to the conceptualization of the law itself. It is also related to the place that the key actors in the legal system occupy in the polity and society. By offering a history and analysis of legal education through its most general features, we can dive into the history of the legal discipline, the structure of regulations, and the profession of those who have to deal with those regulations. The work explores the relationship of the ideas or notions of the law, legal knowledge, and the social role of the most important legal actors, those who today we call legal professionals but who have had other titles historically.

This work has a historical dimension, but it does not pretend to be a chronological or exhaustive history of legal education. Instead, what it proposes is an exploration of the relationship between legal education and its social and intellectual context in selected periods and cultures. In that sense, this work is intended as an introduction to a cultural and comparative history of the law. It is a longue durée history with a temporal scope of two millennia. Within that broad scope, certain periods and places have been selected in which the relationships of legal education, the concept of the law, and the social role of the main legal actors can be clearly highlighted and in which the fundamental changes in these aspects of the law can be easily discerned. The geographical framework chosen for this work is Europe and the Americas. The distinction between chapters is taken from the summa divisio of comparative law between the civil law and common law traditions, except for the final chapter, which analyzes the contact between and convergence of the two traditions in contemporary times.

This book is about the changes in the legal education of both civil and common law traditions. A legal tradition is the most settled part of the legal culture in relation to understanding the law and how we relate to it (Merryman & Pérez-Perdomo, 2019:2). It generally corresponds to the basic aspects of the way those who are most closely associated with the law understand it; this is what we call the professional culture of law. “Tradition” in itself implies continuity in time but does not exclude changes. The purpose of this work, then, is to show the changes that legal education has undergone in these two great traditions of the Western world.

At the same time, legal education helps maintain legal tradition. It is charged with transmitting the currently accepted ideas and values related to the law, as well as the law’s proper relationship with society. For this reason, studying legal education historically and analyzing it from the perspective of the establishment and transmission of legal culture can offer a new window onto legal culture. Thus, this work is a cultural history of the law, or at least part of that history. It is a contribution to thinking about legal education both historically and theoretically, a perspective that has been rarely offered (Dezalay & Garth, 2021), even among those of us who are professionally dedicated to the teaching of law (Cownie, 1999).

Legal education is also important in relation to those whom we now call legal professionals. What really distinguishes them from other mortals is having received a special education that others have not received and being directly or indirectly linked to the operation of the legal system. Of course, it is important to distinguish formal from informal learning. The latter is more difficult to delineate because it is intermingled with many other influences, such as the general education of certain social strata and the very activity of legal professionals or experts. This book focuses on formal education. Nevertheless, it offers some glimpses of the informal aspect of legal education. The analysis relies on what we know about the Roman jurisconsults, the medieval law professors and lawyers, the humanist jurists of the early modern age, and the professors and lawyers of later centuries, all in relation to their place and roles in society.

As a work of cultural history, this book is supported by an extensive bibliography, generally classified as works on the history of law, the philosophy of law, or the history of legal ideas, but the emphasis of the analysis is sociocultural. Preference has been given to documents from the period, such as the testimonies of professors, students, and visitors. Consideration has also been given to the literature used by students or trainees, mainly in order to understand the structure and type of discourse as a reflection of the general concept of the law rather than to analyze the ideas in detail. For the most recent decades, I also incorporate some self-study, drawing from my experience as a student and teacher in several countries in Europe and the Americas, with the goal of contrasting the observations derived from my own experience with the conclusions of academic works.

The first chapter deals with the civil law tradition starting with the transformations during the long period from classical Rome to the time of Justinian. It then moves to the development of law teaching in medieval universities and the subsequent changes that occurred in Europe and Latin America. The chapter focuses on the main transformations in a tradition that extends from the first century BC to the beginning of the twentieth century but highlights those times and places in which one can perceive most clearly the relationships between legal education and other relevant aspects of the law.

The second chapter analyzes the common law tradition. The story begins in England, where the education of serjeants-at-law and barristers can be traced from the end of the Middle Ages to the beginning of the twentieth century. The focus then shifts to the transformations of legal education in the United States of America, especially from the nineteenth century onward.

The third chapter analyzes the convergence that has occurred in Europe and in the Americas as the result of a new conception of the law, legal knowledge, and the role of legal professionals in a time of very rapid social change and frequent interactions among people from different nations and cultures.