Rediscovering law school
Is law a true academic discipline? With some exceptions, law lacks an internationally accepted basis of scholarly communication and interaction.
Law schools are fascinating institutions. For centuries, the common law countries managed without university jurists. In England, where law school is a latecomer to universities, one can still be called to the bar with a degree in classics or history, followed by a one-year conversion course and in-house training at the Inns of Court. Would we accept such a path for becoming a medical doctor?
In Europe and elsewhere, law is considered an academic discipline, aiming at educating both academics and future practitioners. US law schools – which follow on from three or four years of college – by contrast train their students for the legal profession: law is a professional discipline in the US. Nevertheless students run most scientific legal journals, including the initial culling of manuscripts, the evaluation of their content, the decision as to whether to publish and the final editing. Ever thought of students running Nature or the British Medical Journal?
For these and many other reasons the question often arises: is law a true academic discipline, both in terms of teaching and research? With some exceptions, law lacks an internationally accepted basis of scholarly communication and interaction. The predominantly held view of lawyers is that they are not real academics.
The reputation of legal research is an old topic which had already been raised by a German scholar, before the first American law schools even emerged and long before legal research in the UK was considered to be a true university discipline. In Berlin, in 1847, Julius von Kirchmann gave a lecture to the elite jurists of the Berlin Law Society, on – what he called – the worthlessness of jurisprudence as a science (Über die Wertlosigkeit der Jurisprudenz als Wissenschaft): even a partial revision of the law can turn whole law libraries into collections of waste paper. The root of most evil in the German courts was to be found in the law schools, Kirchmann argued. The malign influence of jurisprudence (black-letter law) had to be stopped, if only by dismissing the parasitic legal scholars from their universities.
That’s nothing new under the sun. In the eyes of some American scholars, today’s American legal scholarship seems to be nearing a really deep depression. In a most entertaining discussion between two well-reputed American legal scholars – Pierre Schlag and Richard A. Posner – Schlag speaks of legal academics ‘argu[ing] among themselves (… ) in a kind of mock common law sort of way’, ‘spam-jurisprudence’ as well as ‘case-law journalism’, and in the end ‘nothing happening’. A dozen good scholars would do for the whole of the United States. In Leiden, meanwhile, a young PhD candidate defended his superb PhD which was graded cum laude just last week. Hardly spam research, I would say.
Worldwide, in teaching as well as in research, law schools are in search of their mission. My research, therefore, is about law schools, ranging from the US and the UK to the continent of Europe, as well as the Far East, Latin-America and Africa. It is hard to tell how many law students and law schools there are worldwide. My guess would be: around three and a half million, in many thousands of law schools. These students, their professors, as well as the great law schools they belong to, deserve a book.
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I'm a little surprised at the statement that "In England, . . . law school is a latecomer to universities", since the Regius Professorships of Civil Law at Oxford and Cambridge were established in 1540!
I hope you also research the quality law education in Dutch law schools, because right now it's very low...
Prof. Stolker you are very right, "law lacks an internationally accepted basis of scholarly communication and interaction". In the view of that, I have been an enthusiast of Public International Law (Although my background is International Relations) and some issues came to the fore. Principally, the universality of law especially universal jurisdcition has been defiled by the fact that most scholars in the genealogy of international law have been so rigid. Most scholarly literature are dominated by Eurocentric paradigms, as well the praxis- practice and analysis- of this realm espouse Western models that act as ontological blinders. This further corrupts the understanding of Africa bearing in mind that Africa has the highest number of cases in the ICC. Africa has “home-grown” mechanisms of transitional justice such as mato oput(Northern Uganda), and gacaca courts(Rwanda), as well as ritualized process of reintegration e.g. magamba spirits in Mozambique. These models are very crucial in shifting from retributive to distributive justice-which is the preferred mode of justice in contemporary law embedded on justice versus peace debate.
Early thinkers rubbished the significance of Africa in International Relations e.g. F. W. Hegel. This “nuisance” view of Africa is further explored by Africanists such as JOHN CLARK in his contribution: “Realism, NeoRealism and Africa’s International Relations in Post-Cold War Era,” and TANDEKA NKIWANE’s “End of History? African Challenges to Liberalism in International Relations”.
Following the ruling on Thomas Lubanga, the issue of child soldiers- what Lubanga called kadogo i.e. Swahili word for small or young- came to my mind. Western scholars must study in-depth the dynamics of war and warrior culture in traditional societies, which are replicated in modern socio-cultural practices. In these societies, warriors - like in the tripartite Platonic Republic- have certain characteristics and have the onus of protecting and defending the society.
According to most instrument under International Humanitarian Law (IHL), and reference materials e.g. in Special Court for Sierra Leone, a child is anyone under the age of 15. Notwithstanding, legislation was amended to raise the conscription age into the armed forces from 17.5 to 18 years.
I am not supporting the conscription of young people into the forces but I take issue with the way most instruments have tackled the issue without consulting the traditional beliefs in many societies. Most of these societies are hierarchical and are characterized with some rites of passage e.g. circumcision. The essence of circumcision is to graduate from childhood to adulthood. Once you are circumcised, you are regarded as an adult, given the nod to marry and procreate, build your house in your ancestral land, and become a warrior among other activities.
In the view of that, I would like to bring to the attention of Western scholars that in most societies, circumcision is done between the ages of 12-15 years. Once, the young fellows graduate to adulthood, they are free to be conscripted to become warriors without them being administered with any concoction that impairs their judgment. Therefore, the issue of child soldier conscription should not be the age(15 yrs and below), but the conduct of the command since traditional practices such as circumcision prepare those who have just undergone the rite of passage to grapple with challenges such as family and war. Succinctly, the legality of most ruling on the use of child soldiers is dubitable under traditional practices.
Prof. Stolker, as an academic, it is upon you and other stakeholders in this field to accomplish “intellectual jailbreaks” that will help gain nuanced understanding of Africa and lift the ontological blinders placed by Eurocentric lenses. Lastly, let us desist from referring to Africa as “Third World” and instead refer to it as: transitional countries; developing South; global South. The use of derogatory terms such as “Third World” is tantamount to slavery which as attained the status of ius cogens.
Jim Okore
MA: International Relations (Development Studies) {in progress}
United States International University-Africa.
I believe, as so many other things in life, that law has its academic side and its social side.
I think the reason why Law schools were so late to come to England is because the act of administering justice, in my opinion, has more to do with logical thinking, empathy for the justice seekers and the weighing of interests. For this an academic degree on law is less relevant.
The academic side of law focuses mainly on the rules, as prescribed in law books. This purely procedural and rule oriented justice system has brought us cases (mostly criminal law) where the justice system has been more about a battle of wits between lawyers and less about the achievement of justice.
Here in the US I'm sure the internet helps people become "do-it-yourself" lawyers as well. There are kits to file easy Wills, Living Wills, Powers of Attorney, etc. The general consensus of the middle to lower class here believe attorneys are overpriced ambulance chasers looking to exploit real issues for their own gain.
When I expressed my interest in attending law school some of my family members were concerned I would become "one of them".
I consider myself an academic purely because I'm studying LAW and its myriad of applications. I don't plan on putting a shingle on a door somewhere to help keep criminals out of jail at $500 a pop. I plan on researching constitutions.
Sincerely,
Casey Magnuson, Master of Public Law
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