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Legal Competencies for the World We Live In

The debate between law societies and universities about the contours of law degrees has been at the forefront of discussions between law schools and law societies for the past ten years. In order to control entry into the market of new Canadian faculties of law or foreign universities offering Canadian Law degrees, the Federation of Law Societies has sought to define what is a Canadian law degree. It has defined “core” competencies. Provincial Law Societies also describe the “competencies” required of their members. For example, the Law Society of Upper Canada conditions entry to the Bar to the acquisition of competencies such as conducting client interviews, identifying applicable areas of law for a particular problem, drafting litigation documents, using appropriate precedents, negotiating, and managing client’s information. [1]

Faculties of Law have been developing their students’ competencies for decades. During their years of law school, students are tested on a range of competencies that include some of the ones identified by the Federation or the Law Societies, but also others. Most law schools aspire to develop within their students the ability to hone their critical thinking skills, to recognize the limits of law as a tool of policy transformation, to identify systemic injustices or to formulate law reform proposals. Depending on its mission or identity, a law school may want to deepen its graduates’ knowledge in certain areas.

The list of competencies developed by law societies, as comprehensive as they are, risk creating a certain form of “essentialism” about what is needed to be a lawyer. Students reading the Law Society’s list of competencies often think that the list represents all that is required to be a lawyer, and that other skills are less important. The expression by law societies of the essence of lawyering creates the danger of reducing the legal function to its technical component. The list of competencies defined by the Federation or by law societies should be seen as a minimum, and not a maximum because, among other things, this list fails to recognize the social roles that lawyers play. The list is incomplete because it does not define what would be an excellent judge or a formidable policy maker. My point here is to reflect on the competencies that universities must develop. The language of competencies is not owned by the Bar, it should be embraced by academia in a manner that reflects its understanding of its role.

A. Defining critical competencies for society

Faculties of Law have multiple functions: they are research institutions that assess legal norms, analyse them, categorize them, criticize them, and seek to push the boundaries of legal knowledge. At times, this research function means criticizing law societies or the bar for its adherence of rules that no longer work. Legal academic cultures embedded in academic freedom have served society very well and have allowed the progression of law. For example, faculties of law were at the origins of critical schools of thought that have had a transformative impact on the law. Feminist thought has influenced criminal law, family law and tort law. Critical race theory has had a similar impact in reframing areas of criminal law thinking and developing tools to assess discrimination. Critical indigenous legal studies have also modified constitutional theories, and introduce concepts of decolonization and reconciliation as objectives of our legal system.

It requires creativity to capture this essential role and translate it into a language of “competencies” that can be measured. For example, we have tried at the University of Ottawa to reflect our ambitious agenda in such a language. The learning outcomes for the students in the J.D. program include the Federation requirement of the understanding of the complexity of law, but we added the need to recognize various critical legal perspectives, of understanding of procedural issues, including access to justice problems and an understanding of the plurality of legal systems, including indigenous legal traditions. In the category of knowledge of methodologies, we insist on the ability to engage in logical and critical reasoning for the purpose of developing effective legal arguments and evaluating the merits of an argument. In the application of knowledge category, we identify that our students should be able to interpret case law and statutory law, but also to use research tools and a variety of sources of law and perspectives to analyze legal issues critically. In the context of their communication skills, we aim for excellent legal writing, but also to writing that is accessible to the public.

We also aim to ensure that our students are able to apply their knowledge of law and legal methodology in new, creative and critical ways and to apply various methods and procedures available to lawyers for the purpose of law reform and social transformation. In developing the professional capacity of our students , we propose that they should recognize the value of pro bono work, be able to manage one’s learning in changing circumstances by continually updating and improving one’s knowledge and skills throughout one’s career, to recognize the role and importance of official languages in the practice of law in Canada, and one’s professional responsibilities in this respect and to demonstrate an understanding of one’s obligation to ensure access to justice. We prepare our students to respect Indigenous law and to have a in-depth knowledge of the impact of residential schools. We also think that they should have cross-cultural competencies, that they should be prepared to know the various obligations of businesses and to be able to assist both the for profit and not for profit sectors by sitting on boards or providing legal assistance.

The exercise of naming what we seek to accomplish has been very meaningful for us. It helps identify knowledge and skills that are necessary to ensure the minimum standards expected from practitioners, but importantly the skills needed for the world we live in and for the world that we will fact. The resistance to using the language of competencies stems from a fear that it is a reductionist language that undermines the academic environment.

B. Resisting Essentialism

Faculties of Law are guardians of academic freedom in research, teaching and community service. Their function is to foster innovation. They cannot define their curriculum solely by what lawyers are practicing now, they must pay attention to underserviced legal issues, to the places where the law has not gone yet but should, to the larger tensions that may affect the practice of law or society in the future. Tensions between the Bar and Academia are not new, nor unique to Canada.

If law societies are in the business of testing entrants on the knowledge of the law as it is, faculties of law cannot and should not define their role in such a narrow fashion. The “articling crisis” has precipitated tensions between law schools and the profession. The bar is accusing the faculties of law of not preparing the students for practice; the Faculties are afraid that their mission will be reduced or transformed by this emphasis on technical requirements. Faculties are not resisting practice or practical skills per se, as much as preserving their autonomy in defining the range of competencies that are essential for society. In recent years, the tension between the Bar and the academy has been exacerbated by external factors: changes in the clients’ expectations that undermine the traditional training function of law firms where more seasoned lawyers would invite juniors to sit and watch. If the training function is no longer paid by the client, it must be internalized by law firm or delegated away, to law schools or to private enterprises and absorbed by students themselves.

It would be a mistake for our society if law schools relinquished their law reform and fundamental research functions. Indeed, these functions are needed more than ever in a rapidly changing world. Their academia’s autonomy to innovate and to support critical voices about law or about the profession must be maintained. Faculties of law should not be afraid to speak the language of “competencies” but must ensure that the range of competencies that they are fostering aim at producing excellent lawyers, first-rate law reformers and outstanding citizens. There is a need for Faculties of Law to develop their original voice on what constitute the legal competencies needed now and for later. This function must be respected by the Bar and the Law Societies.

Ambitious law schools that aim to educate their students beyond the minimal competencies defined by the bar are essential. Law schools ought not to be deterred or undermined in that search. We should not be content to reduce our expectations of law graduates to the competencies minimally defined by the Bar. They are a floor not a ceiling, they are “minimal standards” and not aspirational goals for a society based on the Rule of Law. In pursuing the conversation between the Bar and the Academia, it is essential that respect for such ambitious language of academic competencies be maintained. The legal competencies for the world we live in can only be attained if we keep our academic institutions at the forefront of legal thinking and not curtailed by short term solutions.

Nathalie Des Rosiers
Dean, uOttawa Faculty of Law, Common Law Section

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[1] http://www.lsuc.on.ca/licensingprocess.aspx?id=2147498132

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