Introduction

In 1901 in his Rede lecture the distinguished English legal historian Frederic William Maitland was pondering about how the common law had survived the Renaissance. Looking at the Year Books of Henry VII and Henry VIII, he remarked that these ‘ancient law reports are not a place in which we look for humanism or the spirit of the Renaissance: rather we look there for an amazingly continuous persistence and development of medieval doctrine’. Indeed, while Renaissance-era writers were generally contemptuous of anything medieval, Renaissance-era legal writers were not only continuing to use but were actually praising medieval texts. Maitland questioned:

Maitland’s argument was that the common law survived because it was taught, studied and perpetuated by the Inns of Court and those they trained. As Maitland commented it was ‘difficult to conceive of any system better suited to harden and toughen a traditional body of law than one which, while books were still uncommon, compelled every lawyer to take part in legal education and every distinguished lawyer to read public lectures’. Legal education served to fossilise the law, bestowing a sacred aura upon what would otherwise seem archaic. As he put it:

Law schools make tough law.

Over a hundred years after Maitland’s lecture and many hundreds of years after the Renaissance, the common law continues to thrive. Attributing this persistence to the continuing role of legal education provokes a ‘chicken and the egg’ controversy as to causation. Yet, the role of Law Schools in making and perpetuating ‘tough law’ is so fundamental that it is taken for granted. Though there are exceptions, legal education remains characterised by doctrinal legal studies. The first stage of legal education focuses on the learning of legal principles, with a focus on their application. Law students are trained to operate as jurists.