Legal Education in India : Issues & Challenges

Essay Submitted to:-

1st Dr. A P J Abdul Kalam National Legal Essay Competition

2016

Organized by

ProBono India

In Association With

Skillfull India
(An Initiative of Vision of Tomorrow Charitable Trust, NGO)

Essay Submitted by:-

Vidit Harsulkar
B.A LL,B 2nd Year
Maharashtra National Law University, Mumbai
02-Pawansoot Appt. Ramdaspeth Nagpur 440010
Mob. 9028086992,
E-mail :- carlvon3@gmail.com

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The Contemprary notion of “Thinking Like a Lawyer”

Fundamentally everything that entering law students are exposed to for the duration of their
first year of studies transmits back to the idea that they need to learn how to “think like a
lawyer.” All of the expertise they are expected to dominate (the gathering and rejecting of
facts, issue spotting, legal research, application of law to facts, etc.) strengthen the perception
that the law, or more accurately, the legal profession, is a logical domain distinct from any
other. The law is a domain of human inquiry that draws upon the simple reasoning and
analytical abilities of the people within the domain, but which makes enlightening revalation
primarily in the context of the domain itself. When a student commences legal education,
he/she must develop a “legal mind” in order to fully mould his/her logical and reasoning
capabilities in a manner that will enable him/her to reason about the law in a way which a
practing lawyer does.

Once students enter law school, they, enter a discourse community and gradually acquire
expertise in [this] new domain. In order for law students to advance the required familiarity
with this system, they must shape their reasoning abilities in such a way that they can begin
to comprehend and use the “specific terminology/jargons and theoretic concepts” that people
in the legal system use. The law is a distinct field of study because the profession has:

1. A crudely decided upon set of common deductions

2. Mechanisms of intercommunication amongst its participants

3. Techniques to use these mechanisms to offer evidence and feedback

Before one can apply these distinctive mode of study effectively, he/she must have grasped
its basic elements comprehensively. Complex thinking within the purview, then, is subject
on having the suitable expertise; Law schools are tasked with familiarizing the intricacies of
both the diverse discourse and complex problems students are bound to face while practicing
law.

Legal educationalists help students take the first cautious and stumbling steps in the course of
a fuller indebtedness of the legal domain. The first steps are, certainly and by necessity,
simplistic, highly formal and overly stylized. This basic structure allows students to move

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from the neophyte to the novice. This move is impo rtant, as it formulates students for the
more intricate and textured understanding that they will require to develop in order to become
entirely accepted associates of this profession. While these steps are rudimentary and simple,
they have deep impression on the learning and training which follows. This modest and
foundational stage employs certain conventional and formal activities in order to introduce
students to this new biosphere of thinking. Dominant amongst these activities are those
related to the representation of the interests of others in a challenger system, which pits
advocates against one another in an effort to resolve disputes. i.e. Moot Courts.

The observation that most academicians in the Indian legal system hold on the subject of this
system, rightly or wrongly, is that this sort of procedure best embodies the interests of justice
and fairness for those represented. As a consequence, arriving law students must be exposed
to, and in turn master, simplistic and untextured analytical and dissertation skills that are
simple guesstimates of what actual lawyers would exhibit. Part of this whole procedure is the
introducing of advocacy skills that are an essential part of any lawyer’s repertoire. Indeed,
much of the first year syllabus in Indian law schools is aimed at having students cut apart
legal arguments and relate them to shifting factual situations

Accordingly the most important method for this type of training in law colleges should be/is
the case law method. The case law method is designed to allow law professors to teach large
classes of arriving students to comprehend the logic, language and context of legal decision-
making. Law students, especially first year law students, are expected to read, digest and be
able to debate cases, and the legal issues that can be carved out from these cases, in the so-
called doctrinal areas of the law (civil procedure, contracts, property, torts, etc.). All law
schools broadly employ this method of training undergraduates “how to think like lawyers”
in their first year curriculum. From this know-how, law university teachers expect that they
can help mold the thinking of their students to fit in to the expected standards of the
profession that these undergraduates have picked to enter. The case-law method, along with
the Socratic approach of discussion between students and their professor, is intended to instill
in students the notion of how they need to think if they are to be successful in Law School’s,
and in the profession by and large. This modus operandi of training lawyers is tried and spot-
on. It has, after all, yielded a number of the most significant legal minds in Indian
jurisprudence. Innumerable practicing Lawyers, from the leading most prestigious firms in
Delhi, Mumbai and Bangalore to the most modest solo practices in Bhairampur, have learned
their craft by this (case study) method. There must be something regarding this method of

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teaching law to first year law students we have employed for generations, as it has proved to
be both useful and effective.

The relatively new method of training law students that is employed in the first-year of their
studies is specifically designed to yield an environment that exposes them to a distinct
experience. The use of this method in the classroom can, for example, expose relatively large
numbers of students to doctrinal concepts, help them see how these doctrines are related
(often inter-related), and give them a basic working understanding of how the legal process
operates. These are all laudable and necessary elements of a rudimentary legal education.
This is why the doctrinal case law method is particularly useful in first-year law classes.
Students need to stretch and modify the analytical skills that have placed them into law
school. There need to develop the specialized use of these skills in the context of legal
analysis and decision-making. In other words, first year law students are expected to learn a
new ontology they are expected to see and think about the world in a new way. The narrow
notion of “thinking like a lawyer” is an expression of this ontology in the context of the
litigation and adversary culture of Indian law. The case-law method has proven to be a
relatively effective and efficient way of assisting students in this process of epistemological
transformation.

The idea that “thinking like a lawyer” translates to understanding conflict in the context of
the litigation system is widespread throughout the profession. This is true throughout popular
culture as well. These observations are related to the fact that the Indian legal system is, like
it or not, litigation driven at some level, there is a wave of change in the present times but it is
yet to catch up entirely. As a result, advocacy is certainly a core skill that any aspiring lawyer
needs to learn, as are the corresponding set of skills associated with the litigation process.
The law school experience is the student’s first introduction to this environment. Since these
skills are so central to the widespread perceptions of what it means to be a lawyer, it should
be no surprise that the early initiation into the profession which is encapsulated in the first
year of law school revolves around the themes of advocacy and the adversary process.

The law school curriculum should be designed to give students:

the ability to ground legal pronouncements in the “facts” the ability to discern fact and
opinion that is significant for judicial decision-making, the ability to argue a position and
urge an outcome based on selection of facts and interpretation of legal opinion, and the belief
that judicial opinions establish the “law.” These abilities bring with them the sense that the

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student has deepened her ability to reason, advocate, counsel, defend, and legislate. When
this education takes hold, the student feels more sensible, objective, rational, and purposeful.
The student believes he/she has become a person capable of “legal thinking”

“Thinking like a lawyer” is only effective as a step in the ultimate development of a

professional’s maturity. While thinking in this way is an important step in a student’s
improvement, it is also important that they not get trapped in this mode of thinking only.
This constricted notion of “thinking like a lawyer” is usually unreflective and uncritical, and
can numb students to social and political concerns that non-lawyers generally consider as
important and relevant. Upholding this narrow worldview can considerably diminish the
aptitude of (new) lawyers to effectively and capably represent the interests of clients. Since
this constricted notion of thinking is highly schematic and formal, much the way
mathematical or logical proofs are for students of mathematics or philosophy, it is stripped of
any moral or ethical content. “Thinking like a lawyer” has its applications in the perspective
of learning about the law and its uses, and may even be helpful in those circumstances where
law students (or lawyers) need to be able to think legalistically. While this worldview is
surely helpful as a stage in the development, but then, it is a stage that students must be urged
to work through it. Students who stay at this level of development fail to visualise that there
is more to contemporary legal practice than adversary relationships and a zero-sum calculus.

Thinking like a lawyer is a much richer and more complex process than collecting and
handling doctrines of law. While this is unquestionably true at some level, the real point to be
argued for a more strong notion of what “thinking like a lawyer” means lies in the belief that
skills training should be an accepted (and valued) part of the law school syllabus. Indeed, we
should unambiguously note this when we says that legal educators and administrators “need
to acknowledge the importance of a much broader range of skills than has

Law schools should have skill classes–both legal and non-legal skills–as a primary and
essential part of the course. In other words, law schools should amend their syllybus to
acknowledge the increasing intricacy of the world of legal practices and issues and also to
focus on what undergraduates must know to function in that world. As students move past
the shallow legalism of “thinking like a lawyer,” they must develop professional
characteristics that combine all of their skills and focus them on their duties as professionals.
If we do not force undergraduates to move through the primary stage of their professional
development, which is characterized by the narrow legalism that we call “thinking like a
lawyer,” students will be ill-equipped to open their minds to non-legal or extra-legal purposes
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to problems that their clients face. Students (and many lawyers) too often view this regressive
legalism as a default that can be employed without discrimination.

The phrase “thinking like a lawyer” maintains as much significance to today’s legal academy
as it ever has. In the face of recent disapproval that the ideas connected with the concept of
“thinking like a lawyer,” e.g., the case law method with its focus on the adversarial litigation
process, the fact is that legal educators must still teach their students to “think like lawyers.”
Critics have criticised that the narrow focus of this traditional concept unjustifiably restricts
the ability of law students to develop refined analytical and practical skills which go beyond
the adversarial context. In one sense these critics are correct. New lawyers need to move
beyond the constricted focus that the set of skills which the term “thinking like a lawyer”
entails. This does not mean, however, that entering law students should not be exposed to the
traditional approaches of examination and reasoning that the law school syllabus has been
designed to focus. On the contrary, it is vitally important that all law students be exposed to
the narrow notion of “thinking like a lawyer.” This ensures a conceptually and professionally
congruent entre to the community they chose to join. It is, in a larger sense, a lived
experience which all lawyers share in the acting out of their professional being. In essence,
the notion of “thinking like a lawyer” that law school professors have traditionally inculcated
is an ontology that lawyers need in order to become a member of the community of
practitioners. After students are initiated in this ontology, they are prepared to more critically
assess the strengths and weakness of the traditional adversarial method of problem solving.
Once this is done, the more expansive skills of “lawyering” can be developed. In other
words, the set of skills which are inherent in the traditional concept of “thinking like a
lawyer” are a necessary foundation for the more robust and developed skills and analytical
abilities that practicing lawyers need to be effective practitioners.

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Refrences

Web Refrences

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