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Boon, A; Flood, J; Webb, J --- "Postmodern Professions? The Fragmentation of Legal Education and the Legal Profession" [2006] LegEdDig 19; (2006) 14(4) Legal Education Digest 3

Postmodern Professions? The Fragmentation of Legal Education and the Legal Profession

A Boon, J Flood & J Webb

[2006] LegEdDig 19; (2006) 14(4) Legal Education Digest 3

32 J L & Soc 3, 2005, pp 473–492

Over the last thirty years, professions have been subject to searching critiques; nothing about them is taken for granted anymore. The legal profession, as one of the trinity of original professions, has been mired in controversy as critics have deconstructed its values and objectives. Underpinning the social cohesion of professions with society is the educational process through which new professionals are initiated. The critique of professions has enveloped all aspects of professionalisation, including education and training, which poses massive challenges to the approach to knowledge creation taken by professions. In this article the authors consider the institutional dimensions of professionalism and the ways that the legal profession, as a modern institution, grapples with the challenges of post-modernity.

Post-modern theorists observed that radical changes in socio-economic organisations presented by post-industrial capitalism in the second half of the twentieth century threatened our prevailing conceptions of knowledge. The power and legitimacy of professions is acquired in part from their status as organisations defined by their control over knowledge. If control over knowledge is lost, what happens to power?

For the solicitors’ profession in the UK, the Law Society has adopted the role of determining what is knowledge. The power is constrained, however, as the initial stage of legal education is negotiated with universities, and the final stage of training, the apprenticeship or training contract, has been largely left to solicitors’ firms. Both are troubled relationships. The Law Society’s Training Framework Review (TFR), promises changes to solicitors’ education from ‘cradle to grave’, marking a potentially radical departure in legal education and training. The Training Framework Review Group (TFRG) proposes that regulatory activity focuses on the assessment of educational outcomes, rather than courses or other processes. Among the ideas under consideration are the centralisation of the assessment of some of the post-degree outcomes and external assessment of some elements of the training contract. The combination of these ideas make the conventional, chronological stages of education and training, from academic to vocational education and hence, to apprenticeship, highly contingent. In aspiring to provide flexibility and accommodate diversity, differentiation, and mobility, the TFR espouses distinctly post-modern themes.

The TFRG’s proposed outcomes are organised in four groups. Group A outcomes comprise the intellectual, analytical, and problem-solving skills delivered in an honours degree, together with a core of legal knowledge that reworks the current seven foundations of legal knowledge. The Group B outcomes, loosely gathered under ‘the ability to complete legal transactions and resolve disputes’, are readily identifiable with activities in the current Legal Practice Course. The Group C requirements, and ‘ethical requirements of being a solicitor’, and those in Group D, ‘professional, personal management and client relationship skills’, could inform both a vocational course and a period of work-based learning. The TFRG, however, appears to reject the allocation of outcomes to stages.

The TFR proposals envisage the replacement of the training contract with a solicitor’s firm by a period of work-based learning of up to two years under the supervision of a solicitor. There are proposals for more external scrutiny of standards, including more rigorous monitoring and reporting processes for the period of work-based learning, centralised assessment of some or all of the Group B outcomes, and a test to be completed before the end of the period of work-based learning. These proposals aspire to make operational the underlying, unifying principle of the Training Framework Review, increase functionality, and respond to the principal influences or spheres of concern, access and standards, specialisation, and internationalisation.

The TFR proposals, it is said, respond to concerns about the fate of ‘non-standard’ applicants by reducing the costs of and removing potential bottlenecks in the qualifying process. Critics suggest that these benefits are illusory. Money wasted on an unregulated course will be a fresh source of criticism of professional regulation and the preference of the market for standard products will deny non-standard entrants post-qualification jobs in legal practice. The underlying concern, however, is that the end of a compulsory Legal Practice Course, and the possible contamination of the undergraduate stage by vocationalism, symbolises deprofessionalisation. There will be a race to the bottom in providing the cheapest route to qualifying as a solicitor.

Increasing specialisation of legal practice calls into question the utility of broad legal education, in which most of what is studied will inevitably be redundant. The TFR proposals may extend this logic by encouraging training routes geared to particular kinds of practice and by paving the way for a more efficient division of time between a generalist pre-qualification regime and post-qualification specialisation focussed program.

Even if the immediate impact on undergraduate legal education may be relatively slight, the Training Framework Review is an extremely important development in terms of locating trends in legal education within the wider context of the transformation of higher and professional education. Whatever its particular merits, in policy terms, the TFR clearly fits within the growing marketisation of the higher education system of education and training. This tendency emerges in three particular and related trends that we call commodification, flexibilisation and segmentation.

The TFR, despite its evident desire to increase the ethical content of academic and vocational legal education is, in reality, unlikely to bring about that degree of transformation to either the law degree or the vocational stage, whatever form that takes. Indeed, in so far as it may encourage a move to more exempting degrees, it potentially brings the academic and vocational projects of law closer together, for good or ill. At a technical level, this could be welcomed if it allows for a more reflective and intellectually satisfying approach to the professional elements of training; it could even mean a revival of academically neglected areas of procedural and adjectival law. But, on the other hand, there are also risks associated with the introduction of more vocational outcomes to the degree: greater pressure on an expanded curriculum, almost certainly; perhaps, also greater pressure from students, employers and others to increase the occupational relevance of the curriculum.

Flexibilisation, in various forms, is already a strongly emerging feature of the higher education terrain, through both national and international policy initiatives. Pedagogically too, flexibilisation is increasingly influencing delivery modes and practices through the use of open distance learning mechanisms, work-based learning, the construction of virtual learning environments, and so on. Flexibilisation thus represents a change of potentially significant proportions. At best it can help democratise knowledge, enhance access, and assist individuals to develop more self-paced, self-directed, and perhaps personally ‘relevant’ programs of learning. It may encourage us to find new and interesting ways of constructing and delivering a curriculum. But there are possible consequences that would prove too radical a departure from traditional conceptions of learning for many. The flexibilisation of training is also in part a response to the structural transformation and segmentation of the legal profession.

Theoretically, what does the TFR signify? We argue that it represents a significant movement in the development of a professional association seeking to legitimate its authority by developing a highly bureaucratised system of training for a profession that is riven by fragmentation. Implicit in the TFR’s approach to education and knowledge is a democratisation process, which is encapsulated in the ideas of access and diversity. The TFR attempts to achieve this by breaking down its overarching structure into a set of related categories: knowledge, skills, and attributes. The TFR, via flexibilisation, appears to restructure legal education into a broad, diverse array of options. It is no longer command and control but a move to verification through audit, which becomes a compliance-orientated approach to regulation. By adopting the TFR the Law Society is gambling that flexibility in the regulation of education and training can hold the whole together rather than forcing it further apart.

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