Global Legal Education and India

Introduction:

Legal Education has traditionally been a neglected area, in India. It is one area where there has not been any fundamental change during the last 150 years. Except for the duration of the courses, and addition of some fundamental subjects, there has not been innovation in legal education scenario during all these years. An examination of the history of Indian Legal Education would reveal the following:

Legal Education in India has remained mostly concentrated on developing legal professionals in a national context.

Changes in Legal Education scenario cannot be fully understood from various committee reports, which do not exactly follow the actual changes in the legal education scenario.

Legal Education has more or less remained a theoretical study, with only minimal content of practical exposure. Experiential learning was given a back bench in actual practice, and many practical courses remain in paper rather than in content.

National law school experiment in India which has to an extent revived the interest in legal education has remained elitist and out of reach for children from middle and lower income group.

Since the past few years the roles of lawyers have drastically changed in the society. In the changed scenario, the additional roles envisaged are that of policy planner, business advisor, negotiator among interest groups, expert in articulation and communication of ideas, mediator, lobbyist, law reformer, etc. These roles demand specialised knowledge and skills not ordinarily available in the existing profession [2] . These roles have moved away from being localised and started moving beyond national boundaries. As a result a new genre of glocalised legal professionals [3] has evolved who while having a firm understanding of local legal scenario, was able to extend its principles to a global context. The growth of multi-national corporations and the growing importance of international trade relationships, and evolving interdependence among states in international relations have generated requirement of legal professionals who can think globally while acting in a local context. This has necessitated evolution of law schools from factories that chunk out academic lawyers to training schools that equip the students with the essential skills required for the new generation law graduate. If the law schools across the world are feeling that they can longer train graduates according to their whims, but will have to face the market [4] , and will have to provide output in accordance with the demands of the market, Indian law schools cannot remain as an exception. With all its constraints Indian Law schools will have to evolve from its shell and deliver the expected output or perish.

Current State of Indian Legal Education:

While a lot is currently being discussed about the state of legal education in India, with reports from National Knowledge Commission, Law Commission of India, Legal Education Committee of the Bar Council of India, University Grants Committee Special Committee on Legal Education, Expert Committee Appointed by Supreme Court and some state governments [5] it is necessary to draw a sketch of the existing legal education frame work in India.

In India, Legal education is coming under twin bodies- Bar Council of India and University Grants Commission. After the enactment of the Advocate’s Act, 1961, Bar Council of India (BCI) became the apex body for the entire legal profession. S 7(1) of Advocate’s Act, 1961, provides that one of the functions of BCI is to recognise universities whose degree in law shall be a qualification for enrollment as an advocate [6] . However the legal education remained within the purview of University Grants Commission, which was an expert body constituted by the Government of India under University Grants Commission Act, 1956 with a view to coordinate and determine standards in institutions for higher education or research and scientific and technical institutions.” The Advocates Act, 1961 however has a provision [7] which permitted BCI to lay down standards of legal education. However the 184th Report of the Law Commission had examined these provisions and suggested the following harmonious interpretation of these apparently conflicting provisions:

“…as law courses in Universities which offer certain law degrees or diplomas (and where such students are notified that those degrees or diplomas will not entitle them to practice are concerned) which do not enable a person to practice, the Bar Council of India cannot impose mandatory conditions. The UGC has the prerogative in such cases. However, in the laying down of standards by the Universities even in regard to such courses, though the prerogative is with the UGC and the Universities, they would benefit much by consulting the Bar Council of India. In other words, in regard to courses in law which do not lead to a professional career, the UGC and the Universities could, at their option, consult the Bar Council of India, though it is not mandatory [8] .”

As a result of this dichotomy in regulation, there has been a serious gap in prescribing the standards of education as well as in understanding the proper direction of legal education. In fact the First National Consultative Conference of Heads of Legal Institutions(2002) has observed that the regulatory structure of legal education is currently seriously flawed and needs careful reconsideration. A typical law college has four masters minimum: the university to which it is affiliated, the State Government, the University Grants Commission and Bar Council of India. The conflict of interest between these masters often affects the standard of education imparted in these colleges. The differing priorities of the regulators often makes it difficult to specify a proper curriculum and management control suitable to bring these colleges to any efficient academic or organisational level.

Many commentators have lamented the lack of standards of legal education [9] in India and have made some useful suggestions for professionalization and giving direction to legal education. Some of these suggestions are:

Increasing work load of law students [10]

Coordination in administration

Lack of interest of government in maintaining high standard of education in government law colleges

Absence of proper law colleges in many states such as Madhya Pradesh

Law teaching carried out by part-time non serious teachers in many private law colleges.

Faulty process of appointment of teachers

Faulty admission eligibility norms

Faulty attendance management in most law colleges

Over politicization of law colleges

Faulty method of setting question papers and evaluation.

The existing practice rules of Bar Council of India do not allow full time law teachers to take up litigation roles even in legal aid matters, and still they expect the teachers to impart all the requisite skills in law colleges.

While these often discussed problems have been existing in the country, another problem ie stratification of legal education also crept in the country with the establishment of National Law Schools and Global Law Schools. Currently there are three sets of legal education institutions in the Country:

Global law schools for the Uber-rich, which collect high fees and professes to provide legal education at global standards, in collaboration with leading law schools in US and UK.

National Law Schools for the rich, where fees are comparatively high and is rising, and where the elite students from upper strata of the society.

Other law schools, for middle class and poor students, with minimal facilities and low quality intake.

These three class of law schools produce three distinct class of law school graduates with distinct qualities of students- students fit for global, semi global and local levels.

India, which is fast becoming a major global player, cannot afford to have three distinct classes of incumbents in the legal profession. Since the liberalisation of trade in services and the entry of foreign players into the legal field is just a corner away, it is imperative that Indian legal professionals should start catering to the needs of the global market. After the advent of internet, national borders are fast fizzling out, and in a few years, cross border legal issues may start pouring in, which requires to be addressed in with a broader outlook. Much like the same way as standards of medical treatment cannot be distinguished in a country as rural or urban, legal profession also cannot be distinguished as local, national or global. The need of the hour is to create uniform standards of education and at the same to enable qualitative competition among students. This would require revisiting the current models of legal education and equipping the third category of law schools to come up to the high standards maintained by national and global law schools.

Changing Contours of Legal Practice:

To properly relate the expectations from a law school, we need to appreciate the changes that have happened in the legal environment across the world in the last few decades. Julie Macfarlane [11] , has identified the following changes that have affected the legal environment in the last few decades:

Economic, Political and Social landscape has changed affecting the legal service scenario.

Courts have started moving away from litigation into judicial management of disputes

Clients have started giving more prominence to conflict resolution rather than litigation management.

Focus moved from winning litigation to managing litigation for faster, better results.

Litigation moved to background in the wake of alternative dispute resolution mechanisms.

Corporate clients started relying on lawyers for problem identification and early solutions rather than for fighting law suits.

In India too these changes have been more or less the same. The economic liberalisation prevalent in the country since 1991 has changed the economic scenario, which took a traditional view of legal issues. The advent of new millennium coincided with the change in outlook of traditional Indian businesses, which started moving outside India and to become truly global. These changes had an impact in the Indian legal profession with the proportion of lawyers becoming in-house counsel for corporate houses to those remaining in the legal profession have inversed. Law schools started seeing the change from factories to churn out advocates to multi dimensional education centers focused on developing professionals capable of taking up multiple roles with legal content. The development of compliance departments in big business houses further moved the role of in-house counsels from litigation managers to full service providers, who identify legal issues early and provide solution. Many corporate houses now involve in litigation not for winning them, but to get the best advantage out of it. Individual clients too have been expecting a lawyer to be a solution provider rather than a litigation manager. With the changes brought into procedural laws of the country in 2005 and 2009, the courts have also moved to litigation management mode. ADR has come to the forefront, and the courts are now mandating that before the trial starts the opposite parties should explore possibilities of amicable resolution through various ADR methods. The law schools also have changed in their roles as has been mentioned in the 184th Report of the Indian Law Commission as below:

“The very nature of law, legal institutions and law practice are in the midst of paradigm shifts. Legal education must seek to serve distinct interdisciplinary knowledge domains – law and society, law, science and technology; law, economics, commerce and management. To that extent, certain new law subjects should be introduced in the five year course of LLB in the first and second years.” [12]

While the law commission has advocated the need for a shift in the objective and methodology in legal education, in tune with the changing requirements of law, legal institutions and law practice, the actual suggestions put forth in its report was again going back to the class room teaching, and suggestions to include addition of some taught courses and we need to check whether class room teaching would be sufficient to implant any of the core skills that are required from a law school.

Expectations from Law School-Basic Assumptions:

When we talk about equipping law schools to meet the challenges posed by the changing legal enviroment, we would need a firm understanding of what is the expected output from a law school. The discussion cannot proceed, but on an assumption that the core skills required for lawyers, whether they are practicing in the global, national or local context are all the same. This assumption is taken, not disregarding the fact that the Curriculum Development Committee of the Bar Council of India in its draft report [13] has advocated need for setting up institutions of differential capacity to cater to the needs for rural, big city, and national level. On the contrary, the assumption is taken based on the identification process followed in the succeeding paragraphs, which sets to identify whether there are any common skills required for a person joining the legal profession, whether such person joins the local, big city or national bar association or enters into any area of legal practice with even trans national implications. The assumption is also taken keeping in mind the fact though there is much difference between actual lower court practice and higher court practice in India, in the increasingly globalised legal practice, litigation is only one of the areas where lawyers will have to make their mark, and the modern lawyer will have to look beyond litigation and work in all areas involving legal issues, if they have to succeed in building up a good practice.

Another assumption that forms the basis of the discussion is that the law schools are not merely factories to churn out advocates, but institutions whose primary role is to equip the students to do justice to any legal role which they may take up in life. Thus the law schools will have to equip the students in certain core skills and values, which make them suitable to any legal role, whether it is as an advocate, judge, legal manager or any role where legal issues are involved.

A third assumption is that the core skills required for legal roles are country/location independent and these skills are required irrespective of the legal system in which they are working or the national laws, which they are being taught to apply. So a law student in USA should acquire the same skills as that of a law student in India, China, Netherlands, UK, France, Japan, or South Africa, when he passes out of the law school/college, to be able to mark a legal profession.

Further assumptions that form the basis of the hypothesis are as follows:

Law is a practical subject, and not an academic course. It is more about identification, analysis and providing solution to legal problems and other activities are ancillary or supplementary to this main object.

Currently, law is being looked upon as a national subject. The content of law courses prescribed by the regulators is focused on the national laws rather than on the essential principles. As a result the vision of law students get often confined to national boundaries. On the other hand, the globalisation has made the distinction between various systems of law meaningless, and new avenues in international law, like international criminal law and International Space Law, has cut across national borders.

It is widely acknowledged that there is a wide gap between the law as practices, either in courts or in the outside world and from that is taught in academic courses. Unless this gap is bridged there cannot be a proper synchrony between the needs of the world and the output from the law schools.

A comparable stream of professional education is medical education, which also deals with the human problems. The only difference is that medical education deals with diseases of the body, while legal education deals with social diseases. While medical education has moved primarily to an experiential mode, legal educators increasingly resist the move of legal education to an experiential mode. There is a huge lot of similarity between these two streams of study and hence, law schools should change in a way similar to medical schools if law schools will have to deliver according to the needs of the market.

Essential Legal Skills required for a law student:

Based on these assumptions, let us now try to identify the skills that are required to be acquired by a law student passing out of the law school/college. Only a few studies have tried to identify the basic skills required by a lawyer, and the American Bar Association’s “Report of The Task Force on Law Schools and the Profession: Narrowing the Gap” dated July 1992 , popularly known as The Mac Crate Report is one such work. The Mac Crate report [14] identifies the following as the essential legal skills that should be acquired by a law student upon his passing out of the law school:

Legal research,

Factual investigation,

Communication,

Counselling,

Negotiation,

Skills required to employ or to advise a client about the options of litigation and alternative dispute resolution mechanisms,

The skill to identify the administrative skills necessary to organize and manage legal work effectively and

The skill of analyzing the skills involved in recognizing and resolving ethical dilemmas. [15]

In addition, the Mac Crate report focuses on some core professional skills, which a law student should acquire during his legal education, which can be summarized as follows:

Problem diagnosis

Identifying and formulating legal issues

Knowledge of nature of legal rules and institutions

Factual investigation skills.

Counselling

Negotiation

Advisory skills

Litigation skills

Efficient management skills

Ethical skills.

The skills identified by Law schools.com [16] , a prominent website on law schools and education as essential for a lawyer can be summarized as follows:

Analytical Skills

Creativity

Research Skills

Interpersonal Skills

Logical Thinking Ability

Patience & Perseverance

Public Speaking Skills

Pursues Continuing Education

Reading Comprehension Skills

Writing Skills

Julie Macfarlane [17] (2008) who wrote about the changing contours of legal profession in the past few decades have identified the following qualities which the society demands from a law graduate.

Smart

Collaborative

Entrepreneurial

Personable

Contributing to Collective welfare

Service Oriented

An analysis of all these reports would make it clear that the all these reports are pointing towards more or less the same skill sets that are required to succeed in the legal profession. These skills can be safely summarised into 3 categories as:

Interpersonal skills: Includes all the qualities identified by Julie Macfarlane as well as some skills identified by Mac Crate Report as communication skill and the skills like patience and perseverance identified by law schools.com.

Research and Analytical skills: includes all the qualities identified as problem identification, logical thinking, reading comprehension, writing skills, knowledge of legal rules and institutions, research skills, factual investigation etc.

Solution skills: includes skills like counseling, negotiation, litigation, advisory skills etc.

Client Management skills: includes qualities like client management skill, ethical skill etc.

The acquisition of these four core skills would enable the lawyer to analyse the facts and advice the proper solution that is appropriate for the client in the relevant situation. These core skills would be required in all legal jobs, whether it is that of a lawyer, a legal manager, an academician or a judge. These core skills are required to any legal role, irrespective of whether the role has local, national or global implications.

Learning Methodology:

A look at these skills gives an idea of how these skills can be acquired and how it cannot be- most of these skills or qualities cannot be acquired by simple class room learning, which follows any of the known methods. To acquire these skills the law students must be put through a structured learning process, whose major component should be learning through experience. The learning process should start with class room learning, move towards simulation learning and move further towards experiential learning. The current methodology followed in most of the third category law schools/colleges in the country can more or less accurately be depicted in a pictorial form as given below:

Here class room teaching occupies 80% of the curriculum with 20 % space given to simulation techniques like moot courts, drafting classes etc. However experience shows that simulation techniques required highly skilled teachers, who have active interest in the topic and who can provide direction to the learning through this methodology. In the absence of such teachers, these simulation techniques tend to remain rituals, which give only very less practical knowledge to the students, as is happening in many law colleges/schools falling in the third category in India.

However in some of the national law schools, importance is being given to internships also, where the learning process can be picturized as given below, with greatest importance given to class room learning, then to simulation techniques and thereafter for programs like internships:

Such programmes have been increasingly produced better results, confirming the hypothesis that internship programmes have the capacity to inculcate the essential skills much better than other methods of study. The law school experiments have been lauded by experts [18] as successful, though it has also invited criticism about “corporatization of law schools”.

Issues in the learning model currently followed:

The biggest problem for the learning methodology followed by majority of law schools/colleges coming in the third category is that it tends to over simplify the legal issues, and creates an impression that complex legal issues can be understood by studying case laws and judgments. What class room teaching cannot provide is an insight into the human mind, and the variety of ways in which it can react to a given situation. A lecture or even the Langdellean methodology cannot teach a law student that legal situations cannot be perfectly matched, and there will be a lot of human factors that influence the solution for a given legal problem, though it is possible to form basic generalizations on the basis of prior experiences. Many a times the traditional bifurcation of subjects tend to give a two dimensional picture of the legal issues to the students, though the actual legal issues would often be multi dimensional. For example, while we study Balfour v. Balfour [19] in contract, we often tend to over look that this was not simply a contractual issue, but a matter affecting family, and the original suit was not for enforcement of a contract, but for restitution of her conjugal rights and for alimony equal to the amount her husband had agreed to send. Had it been a simple contractual issue, the result might have been different, and the decision of the court is also firmly rested in the exigencies of the colonial era, as well as the familial relationship, which a student studying the contract law would not know. Straightjacketing this principle to other similar situations is what is being taught to a law student in traditional class room method. Even simulation would be enable the student to understand these extra judicial factors that affected the decision, since the success of simulation depends on the stimulants, which will be controlled. To draw an analogy, it would be like a medical student learning to do surgery. No amount of class room or cadaver surgery would enable the student to understand the problems of a living human being, and this would require live surgical training. Similarly, neither class rooms nor simulation techniques help the student to understand legal issues faced by a human being in real life. Though a moot court on the same issue would give the students a better view about the topics involved, even the simulation techniques would not be able to give the student a firsthand feeling of the human factors accurately. However, just as it would be dangerous to let a student do the surgery directly without any theoretical back ground, it would be dangerous to let a lawyer start handling human legal issues without any theoretical back ground. Hence there is a need to revisit the curriculum and to provide a methodology with a fine mix of class room, simulation and experiential learning. The class rooms would then provide the theoretical base, the simulation, the technical knowhow and experiential learning the final practical touch to the learning of a law student.

Blue Print for new methodology:

The Mac Crate Report and the other major reports regarding raising standards in legal education are equivocal on the importance of skills training and experiential learning. However, given the Indian scenario, the experiential learning and skills training would require a co-ordination of all regulators in the legal education scenario. In addition the law schools should focus on training to equip law students for the various opportunities that exist in the legal job market, which would require a skills training rather than mere implantation of theoretical base.

It is proposed that the following suggestions may be implemented which will help to change the course of legal education in the country so as to enable all the law schools in the country to enable the students to come out of law schools/colleges as professionals who are enabled to think globally while acting locally:

There should be a Co-ordination committee constituted by the Central Government, with one representative each from Bar Council of India, State Bar Councils, Central Government, State Governments and University Grants Commission and a judicial member nominated by the Chief Justice of India, which would be the apex body so far as legal education is concerned. This apex body should control all the aspects of legal education and the powers currently vested in Bar Council of India and University Grants Commission, should be statutorily be transferred to this body. The members of the committee should be either lawyers, or legal academics, who have active interest in the state of legal education in the country. The Apex Body will have the power of affiliation of legal education institutions

All the institutions which impart legal education in the country, should be severed from their current universities and be permitted to function as academically autonomous institutions, with a governing council of its own, constituted by the teaching staff of the institutions and such other members as the respective State Governments decide. The financial control can vest either in the respective state government of in autonomous bodies, as appropriate, but there should be a representative of State Government as well as state Bar Council in the governing body of each legal education institution.

As in the case of Legal Services Board Act of UK, where law teachers are falling within the exempted category, in India also there is a need for allowing law teachers to take up legal practice, either in the form of full time practice or consultancy as appropriate, at least for legal aid purposes. The government can claim a certain percentage of fees earned by the teacher as part of consultancy approval arrangement. Students should also be allowed to take up limited legal practice, either by way of assisting their teachers or mentors, and the Advocates Act should be amended suitably to permit such appearance. This will help both the law teachers and law students to teach and learn respectively on the four basic skills that are required for a lawyer as identified earlier in this work. There is no other better way to acquire experiential learning objective, since it would not be always practical to call practicing professionals to take classes in law colleges, for logistical as well as attitudinal problems. Conversly Law teachers should be encouraged to take up legal practice or consultancy and the law students should be allowed to join them in their professional assignments.

Law teaching should ideally follow the methodology given in the following diagram:

The entire LLB course should be remodeled in credit trimester system, with initial 8 trimesters of law s