[*This post also appears on Ed Lines, my blog about criminal law and criminal justice.]
I like the serendipity of Twitter, and how the unanticipated stuff in your timeline can cause you to pause for thought in relation to issues you might have previously taken for granted, or had not had reason to ponder. And so it was a little while back when Steven Vaughan tweeted about one of the Solicitors Regulation Authority’s ‘Training for Tomorrow’ events, a gathering involving legal practitioners and academics, at which it had been suggested that criminal law was the only subject which could / should be dropped from the Qualifying Law Degree (QLD).
[Skip this paragraph if you know what a QLD is – but for those who may not know, the Qualifying Law Degree (QLD) refers to those components of the degree programme which are required by the relevant professional bodies in order for learners to be eligible to progress to the Legal Practice Course (LPC) or the Bar Professional Training Course (BPTC); respectively, the ‘vocational’ courses associated with qualification as a solicitor or barrister. It is possible for a law degree to be ‘non-qualifying’, depending on its components and / or on the elements of the programme in which a learner has passed or failed.]
Let me quickly declare an interest – criminal law is one of my fields. Nonetheless, I don’t think there is a self-evident case for the inclusion of criminal law in the QLD: the case needs to be made, and in my view it can sensibly be made. I also suggest below that there is a problem with using 'subjects' as a key framing device for the QLD. There are also issues with the concept of the QLD itself, which I will not address in this post.
In a previous post I sketched out some thoughts about module design in criminal law. I suggested that working with a broad conception of what counts as ‘criminal law’ could lead to richer learning, in which connections are made between substantive and procedural issues, and between the content of the law and the various contexts in which it is located. Although I expressed some provisional preferences in relation to how criminal law might be ‘done’, none of my discussion went directly to the issue of the place of criminal law in the QLD, and it is to that which I now turn my attention.
I think that in broad terms, the key criteria for determining whether criminal law should be part of a QLD are (i) whether it serves a purpose or purposes which are of themselves sufficiently important and relevant to merit inclusion; and (ii) whether those purposes can be better served in other ways. Let’s call these the relevance and distinctiveness criteria.
On relevance, one objection to the inclusion of criminal law might be that it does not have a strong relation to criminal law ‘in practice’. A bare ‘it’s not meant to’ is an inadequate response to this objection. I have suggested in another post that some kind of engagement with what legal professionals ‘do’ is a necessary component even of a legal education that styles itself as ‘liberal’ or ‘academic’ (and I don’t like the constraints of those labels either). I think that imaginative design can go some way to meeting those concerns, while also opening the door to a range of interpretations of the subject which are potentially more satisfactory than a conventional substantive doctrine-led account. I’m sympathetic, for example, to the claim that the practice of criminal law is in some respects more about ‘facts’ than ‘law’. The integration of substantive, procedural and evidential content potentially leads both to a richer conception of ‘criminal law’, and also to one which is more valuable to would-be legal practitioners. This does not mean that ‘criminal law’ must become ‘criminal litigation’, or that criminal law must be exclusively associated with simulated lawyering tasks or clinical activity. I argue that, in keeping with a rejection of a liberal-vocational ‘dichotomy’, legal professionals need to be mindful of the other contexts in which the law sits – this is as true for criminal law as it is for any other subject; I would say it is also an ongoing requirement, and not merely something to be confined to ‘pre-practice’ education. So, ‘criminal law’ is not complete without a proper acknowledgement of, and should have at its core a recognition and understanding of a range of its relationships with, for example, politics, society, culture, philosophy, economics.
The relevance of criminal law might also be challenged on the basis that it is not a career choice for many law undergraduates. Well, the legal professions themselves are not a career choice for many law undergraduates, so perhaps we should not read too much into that. It does not seem logical to say that a subject is not relevant solely on the basis of career preferences. However, what to make of the fact that many legal professionals will not deal with criminal law issues in their day to day work? Indeed, as the legal professions fragment and diversify, and as lawyering tasks in many domains become increasingly commoditised, there are likely to be an increasing proportion of legal professionals for whom this is the case. Nonetheless, maybe there is an argument that ‘criminal law’ is part of the ‘irreducible core’ of what it means to be a ‘lawyer’? Perhaps it depends on the lawyering role in question. I wonder whether there is any mileage in the suggestion that (a) all lawyering has an inescapably civic function; (b) ‘criminal law’ is an especially significant expression of certain civic values; (c) therefore some engagement with criminal law should be a part of the civic education of all lawyers. I am happy with premise (a) but I need to think more about premise (b) and whether conclusion (c) follows.
There are other ways to assert the relevance of criminal law. The Qualifying Law Degree is not neutral. That is not, of itself, a criticism – it could not be neutral. But it is rooted in particular, and contestable conceptions of social relations. I’m drawing here on the critiques of legal education offered by critical legal studies (CLS) (see for example C. Stanley (1988) ‘Training for the Hierarchy? Reflections on the British Experience of Legal Education’ 22 Law Teacher 78-86 (also available in M. Lyon Levine (ed) Legal Education (Dartmouth, Aldershot 1993), pp 543-551), which draws inspiration from the touchstone text in this area, Duncan Kennedy’s energetic critique / polemic). I don’t accept the CLS critique in its entirety, but the reasoning is quite interesting. In this context, criminal law might function as a counterweight to a perceived domination of the legal curriculum (and possibly more importantly, the co-curriculum) by private and commercial law interests. We don’t have to accept the claim that these interests create a climate for the propagation and legitimisation of the norms of laissez-faire capitalism (as it might have been styled in the crits’ heyday) to be interested in it. Of the ‘voices’ to which learners are exposed in the curriculum and co-curriculum, there is little doubt that commerce is among the loudest. That need not be a problem in itself, but it is important that there are other voices. This is arguably an especially acute need at present, given the potentially adverse consequences for access to justice which may flow from proposed changes to legal aid in criminal cases. In simple terms, this is not a good time for criminal law to be marginalised.
So much for relevance. Let’s think about distinctiveness. The question here is whether what is added to the QLD by ‘criminal law’ might be better offered by other means. This should cause us to ask whether there is anything ‘different’ about ‘criminal law’. I enjoy discussing with students the question of how we differentiate between ‘criminal law’ and ‘not criminal law’. The purposes of those discussions are to think about the rationales which underpin criminal law and criminal justice, whether those rationales are distinctive to ‘criminal law’, and, by implication, whether there is a distinct ‘domain’ of ‘criminal law’. It is hard to isolate a rationale for criminal law which is not identifiable elsewhere. Even those rationales which we might instinctively think were unique to criminal law, such as ‘punishment’ are in play elsewhere (eg, in relation to exemplary damages in tort). We might see criminal law as the key site for the demonstration of the coercive power of the state, but again, this is not exclusive to criminal law; consider the variety of liberty limiting measures which have been or are available using counter-terrorism laws – ‘administrative’ detention; control orders; TPIMs. The boundaries of ‘criminal law’ seem to be quite permeable – at the ‘high’ end, it can be hard to tell where ‘criminal law’ ends and ‘counter-terrorism law’ begins. And at the ‘lower’ end, the relationship between ‘crime’ and ‘anti-social behaviour’ is controversial. So, does this mean that any claim of criminal law to distinctiveness is fundamentally undermined? I don’t think so. One reason we might find administrative ‘coercion’ in the counter-terror context problematic is that it takes place without full regard to the procedural requirements which we conventionally associate with ‘criminal’ justice. Similarly, the legal framework for dealing with anti-social behaviour is troublesome in that it uses non-criminal law mechanisms as gateways to potential criminal penalties. Consider also the range of protective / preventive orders which are now associated with the criminal law, or paradigm-challenging phenomena such as restorative justice. We may be warmly or coolly disposed to these ideas and practices, but one reason which they are interesting is because they deploy ‘unorthodox’ techniques in a domain where, conventionally, we have ‘expected’ things to be done in certain ways, including with reference to a certain procedural norms which we label ‘criminal’. Our interest is articulated with reference to some kind of albeit loosely defined domain of ‘criminal law’. From this, I suggest that ‘criminal law’ – appropriately and imaginatively constructed – satisfies a requirement of distinctiveness, in that it might add value to the QLD which could not be added in other ways.
It follows that I think there is a good case, based on relevance and distinctiveness, for the inclusion of criminal law in a QLD. However, there may be bigger issues, which I will not develop fully here but to which I alluded in this post. The fact that some of the relevance-claims might also be made in relation to other areas of law, and the difficulty of isolating a domain of ‘criminal law’, point to the weakness of framing the QLD with reference to ‘subjects’. We are becoming accustomed in legal education to thinking about whether ‘skills’; ‘ethics’ and ‘theory’ are ‘subjects’ or whether they are themes which should pervade a curriculum. For what it’s worth, I favour the latter. I also favour a similarly, loosely speaking, ‘anti-foundational’ approach to the ‘foundations of legal knowledge’ on the QLD. I would prefer to see curricula designed around interesting themes – power; regulation; morality; responsibility; accountability; whatever, the themes themselves can be up for grabs – and for learning design across the range of content associated with the QLD to be aligned with those themes. This could make it easier, for example, to design learning activities which simultaneously address multiple ‘content areas’ of the QLD (this need not entail wholesale redesign in some instances – for a straightforward example, many ‘criminal law’ scenarios will have a tort case nested in them, and vice versa). This seems to me to be more intellectually satisfactory – and to be a methodology which could inform the curriculum beyond the QLD (for example, does that co-ownership seminar go in the property law or family law module? What informs the choice? Moreover, why do you have to choose?). It also seems to be more consistent with the messy realities of practice and with the lived experiences of law, in which there are problems, but certainly no modules.