The Success of the Organization of the Legal Profession in England - Essay Example

English Law Part A The success of the organisation of the legal profession in England can be attributed to the function of the growing complexity of modern life and growth in the perceived need for barristers, solicitors and judges. The legal field has positions, stakes, capitals, and shared predispositions. All practices are within this field and subject to its force and influence. (i) Positions. The legal field is the ensemble of all actors who make, interpret and apply the law; transmit legal knowledge; and socialize players in the game of the field. These actors occupy positions which can be ordered in terms of internal hierarchies accepted within (and to a degree without) the field. At the risk of gross oversimplification, one can identify the following strategic positions: (A) Practitioners: In this position are all the people who provide services to individuals and institutions who must orient their behaviour toward the law, providing information about the likely outcome of relationships, deals and conflicts that are legally regulated. (B) Law Appliers: These are the positions officially consecrated for making authoritative interpretations of legal norms in concrete situations. It includes not only judges but also arbitrators and administrative officials, among others. (C) Guardians of Doctrine: Every mature legal system has some form of more or less systematic doctrine which contains authoritative answers to legal questions. (D) Educators: Someone has to socialize entrants, bind the field together and encode its structural constraints. While primary socialization is the responsibility of the schools in almost all legal fields, socialization is a continuing process and workplace influences are often as important as educational ones. (E) Moral Regulators: Legal professions all have systems that police behaviour and ensure conformity of actors: These include formal mechanisms like accrediting bodies, disciplinary boards, promulgators of legal ethics; as well as workplace influences, informal social networks and the like. (ii) Stakes. What are the stakes in the legal field The most important are markets (financial success) and status or a place in the hierarchy of the field. The nature of the stakes differs within subfields. (iii) Capitals. The players in the legal field deploy various forms of capital. These include economic capital, cultural or informational capital (educational credentials, technical knowledge) and social capital (status acquired both outside and inside the field). The main role players in legal professions in England are barristers and solicitors. Academic requirements for qualifications as a barrister now include a degree - though not necessarily a law degree. Traditionally barristers went to the university but commonly studied some subject other than law. In recent decades however, and especially since the Second World War, a law degree has increasingly become the normal mode of entry to the bar. Over eighty percent of those who enter the bar now possess a law degree. Those who do not obtain a law degree must garner one of the limited number of places in one of the courses run by the universities that give instruction for the Common Professional Examination (CPE) - a one year basic law course after the degree course. Limits on student places for those courses are a restriction on entry not controlled by the profession. In 1975, the bar made a degree a prerequisite for entry, except for a special (and tiny) category of mature entrants. This was the first effective entry barrier to the bar. Students must obtain a satisfactory pass in each core' subject as well as overall. The vocational course for the practicing bar is run exclusively by the Inns of Court School of Law in London. This course is a prerequisite for practice at the English Bar not only in England, but also as an English barrister in any Member State of the European Community. (Those who intend to qualify as barristers, but not practice, may select a different course run by a number of former polytechnics.) Until very recently the course and the examination were heavily based on "bookwork," but the new vocational course attempts to train young practitioners for actual experience in the early years of practice. Great efforts have been made to reduce rote learning and bookwork to a minimum and to increase skills training. Entry to the solicitors' branch also has distinct stages: becoming a student member of the Law Society, the academic stage, the vocational course, articles, and finding a firm. Solicitors, like barristers, gain exemption from the first academic stage by obtaining a qualifying law degree which includes passing the basic "core subjects." Alternatively, those who obtain a degree in a non-law subject must undergo the same Common Professional Examination (CPE) as would-be barristers. Traditionally, it was rare for solicitors to hold degrees. In the 1870s only five percent of solicitors were graduates. At the beginning of the century it increased to around fifteen percent. Until the Second World War only a third of new solicitors had degrees. However, today over ninety percent of new solicitors are graduates. (Law Society 1990) A would-be solicitor must at present take the vocational finals course run by the College of Law, given partly at its own five institutions and at sixteen different university institutions. In 1993, the nature of the course changed and became more skills-oriented and thereby better adapted to the circumstances of real practice. Legitimacy of System The legitimacy of the legal system in England can be seen from the growth of the legal professions. The most important reason for the spectacular growth of the bar since the 1960s was an enormous increase in the volume of legal aid and prosecution work. The bar derives a higher proportion of its aggregate income from public funds than the solicitors' branch. In 1989, it was estimated that the bar derived no less than thirty-eight percent of its income from public funds as compared with eleven percent for solicitors. Next, since the late 1960s, the number of legal aid grants for criminal cases rose exponentially. The numbers of cases being prosecuted in the higher courts rose dramatically, as well as annual numbers of divorce cases. (However in 1993, the first ever down-turn in criminal legal aid was noticed as the apparent result of the police cautioning significantly more defendants) (Posner 1996) Moreover, since the 1960s expansion of the solicitors' branch was due in great part to the significant increase in the proportion of the population owning homes. The legal work involved in buying and selling a home ("conveyancing") was, and remains, the largest single component of solicitor's work, accounting for nearly half the profession's total income. Between 1960 and 1987, the proportion of the population owning their own homes rose from forty-four percent to sixty-four percent. Both sides of the profession seem confident that in spite of the present recession, expansion will continue as they continue to satisfy the masses with the true implementation of justice and improving law and order situation.. However, the dimensions of such expansion are difficult to predict. It most likely will be less dramatic than in the 1970s and 1980s, but nevertheless should be considerable. For most of the past twenty-five years those entering the profession have found it relatively easy to secure employment. Of late, the picture has changed somewhat negatively during the continuing recession but prospects remain good. It is striking, however, that the great expansion in the profession has not produced any significant changes in the manner or style of providing legal services, except that the large and medium sized firms continue to grow. The lawyering style of the largest fines has become geared to the needs of the international business community, and as a result, has also become more competitive and "cut-throat." The vast majority of firms remain small, with one to four partners. Work is still conducted in much the same style as in the past. The two main differences might be the advent of advertising and the impact of modern technology. However, the type of work and the way that firms provide service remains relatively unchanged. Increased numbers in the profession probably have stimulated competition and quality of service provided to the masses in general, though the competition comes about more from relaxation of professional rules (for example in regard to advertising) than from greater numbers. Question 2 A central choice in the design of a legal system is that between judges controlled by the sovereign (royal judges) and judges who are not controlled by the sovereign (ministry of justice). In this section we formally consider this choice in lieu of the advantages and disadvantages. Ministry of Justice in England and Wales can perform a range of roles and can have various advantages which need not be mutually exclusive. Debate over the evidentiary and procedural rules and practices governing trials ought to be informed by the fullest possible understanding of the societal role played by those trials. Recognizing the Ministry of Justice's responsibility-taking function does not require setting aside more traditional explanations for the jury. The communitarian perspective on the Ministry of Justice is illuminating in that it focuses attention upon its role in the expression of community identity. Ministry of Justice has a similar power to decide for itself what legal principles should govern decisions in cases and to implement them. It has the power, that is, to decide what the applicable substantive rules are, what those rules mean, whether they are legally valid (i.e., constitutional), and whether (despite their validity) they should be followed. And sometimes that power--like the fact-finding power--is absolute. The other advantage of Ministry of Justice is effective control. In the twelfth and early thirteenth centuries, English kings could not surrender ultimate control to ministry of justice. In subsequent years there was a gradual movement to ensure that judges could not convict without the consent of a jury. During the ensuing centuries, despite the fact that English judges continued to serve the king, ministry of justice should have remained a check on royal discretion. The presence of the jury as fact-finder and the absence of any effective modes of controlling, that is, the ministry of justice, meant during the earlier centuries that the judge's role was limited to maintaining courtroom order, framing the questions that the ministry of justice must answer, and ensuring compliance with the ground rules of the various forms of action. In addition, even the judges in England have been traditionally more independent. Throughout history, common law judges insisted that the principal source of English law was historical precedent rather than the will of the sovereign. On a contrary note, the Ministry of Justice system brings us face to face with a deep tension in our collective understanding of human behaviour. On one hand, we live in an age of cause and effect. Developments in social and behavioural sciences have taught us to look for social, environmental, genetic, chemical, psychological, or other explanations for behaviour. On the other hand, we recognize the necessity of living and acting as though notions of individual responsibility are meaningful. We refuse, and rightly so, to abandon the idea of desert. As a consequence, e.g. the criminal law struggles mightily with the question of when it is appropriate to hold an individual responsible for his or her actions. Ministry of Justice offers a partial response to the problem of judgment. By seeking to ground the laws in popular consent, and by working toward a regime in which all citizens have equal input into the content of those laws, the extent to which any given individual judged under those laws may be said to have judged himself or herself is increased. In addition, Ministry of justice strives to couch the laws in general terms -- applicable equally to all citizens -- with the aim being that the law itself, rather than individual men and women, will sit in judgment. Works Cited Posner, Richard A. Law and Legal Theory in England and America (Oxford, UK: Oxford University Press, 1996). Law Society, Annual Statistical Report 27-28 (1990). Read More