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Ian Holloway

Of theory, skills, and false dichotomies

Of all the shibboleths we are cursed with in Canadian legal education, the worst is that there is a constructive distinction to be drawn between theory and skills.

It permeates the whole structure of our system. It animates how we talk about curriculum, and it drives how we conceive of teaching. It determines the place of clinical programs — and clinical professors — in the law school hierarchy.

It is what underpinned the peace treaty between the Law Society of Upper Canada and the Ontario universities that made ubiquitous the model that we know today of a three-year law school-based degree followed by a year’s apprenticeship that we call articling.

And it is what leads us to speak in a bifurcated way about theory, or “doctrinal” courses, and skills-based, or “practical” ones. It is about as deeply-ingrained as any system of classification could be. All of us who work in the system — myself included — use it reflexively.

But viewing the legal education world in binary terms like this has hobbled us.

Older professors will remember the lengthy and sometimes bitter debates about law school legal aid clinics — and whether students should earn academic credit for participating in them. Likewise, at some law schools, the move to introduce combined law-MBA programs was resisted on the basis that MBAs were “insufficiently theoretical.”

I used to work at a law school that now prides itself on its business law brand, and that happens to be at a university that is home to one of the leading business schools in the world. But in the 1970s, the faculty voted down a proposal to establish an LLB-MBA not just once, but twice! How silly and narrow-minded this all seems now.

Few would seriously argue today that we shouldn’t have law school-based clinics or that the JD-MBA isn’t a valid course of study. But if we’re honest, we have to acknowledge that the skills-theory divide persists. And as we try to prepare for the future of legal education — as we work to create programs that prepare our students for the profession they are joining, rather than the one we joined — the skills v. theory worldview will, if we don’t jettison it, hold us back.

As I have written here before, we now know that adults learn best through intense exposure to material, in which plenty of opportunity for practise — “formative assessment,” as scholars of education call it — is integrated into the process. In other words, effective law teaching involves not just thinking, but doing.

It involves active engagement with the material. This should not be a revolutionary point but lectures, coupled with a system of go-for-broke, 100-per-cent exams, is just about the worst way to teach law. It’s a system in which most people don’t learn very much. At least not very much that they retain after the exam is done.

Indeed, as Harvard University law dean Christopher Columbus Langdell —the father of North American legal education — conceived of it, the case method was supposed to be the end of lectures in law school. For all its faults, the law school version of Socratic teaching that Harvard bequeathed to us all was meant to be the antithesis of passivity in classroom dynamics. It was a prime medium for active learning.

If your number came up in class . . . well, you were going to engage with the material whether you liked it or not! And just as Dr. Samuel Johnson is supposed to have once said that the prospect of being hanged focuses the mind wonderfully, so, too, did the prospect of being put on the Socratic hot seat act as an incentive to engage actively with the material before class.

By the time of its effective demise in Canada (there are a few old campaigners left who continue to use it, but they are few and far between) there weren’t many who were good at it. But done well, Socratic teaching was a magnificent thing.

For those who have lived through it, it is understandable that the prospect of a major debate on curricular reform should cause many colleagues to blanche. Debates over curriculum are traditionally the sink-pit of faculty life. But for anyone who takes their role as a law professor seriously, the imperative to reform is non-negotiable.

If the profession for which we are preparing students is changing, then we have no choice but to change ourselves. Plain and simple. And that’s where debunking the shibboleth comes in.

The notion of “experiential learning,” as it is often called today, as the basis of a Canadian legal education should not seem subversive or threatening. Nor should it seem unintellectual. In a way, it would actually involve a return to our roots. Langdell knew nearly a century and a half ago that the dichotomy between skills and theory is a false one.

And for what it’s worth, so did the dons of Oxford and Cambridge. After all, what was the Oxbridge system of tutorials other than experiential learning in action?

We tend today to think of tutorials as a supplement — a quaint and romantic supplement, done as they sometimes were over sherry in the tutor’s rooms — to lectures. But in learning terms, the model they used in the great English universities was the inverse. Students were given the task of writing an essay each week that was then promptly torn apart by their tutor.

Being forced to engage in a rigorous defence of their ideas week after week was the classical analogue to Harvard Law’s Socratic method. Lectures were just substantive filler. The real learning took place in the tutorials.

The objective of an Oxford or Cambridge education was to inculcate reasoning and rhetorical ability. Very few of the young gentlemen who “went up,” as the old-fashioned expression had it, went on to earn their livings through the study of Latin or ancient Greek. Those things were just a vehicle through which they learned to reason and to make arguments; and through those things, to be good citizens in the 19th century conception of that term.

How is what we’re trying to accomplish in law school today any different? Today’s law students — who are tomorrow’s Canadian lawyers — need to know how to reason and how to write. They need to know how to negotiate. They should be able to juggle multiple commitments at once. They have to understand that we live in an interconnected, globalized world. They must appreciate that ours is an inherited legal tradition, and that we live on lands that were owned by others before us.

It may gild the lily if in law school a student learns how to draft a will or appear in a summary proceeding or structure a real estate transaction. But those things are just vehicles for the real skills of drafting, rhetoric, and negotiations, and for a comprehension of the challenges facing the rule of law in Canada. Those are the enduring skills tomorrow’s Canadian lawyers will need. And those are the things what we must teach.

Theory versus skills? How 20th century! It’s theory and skills: two sides of a single coin. The Victorians got it. Why can’t we?