Dissolving the divisions: reclassifying the law

Graham Ferris, Sheffield Hallam University

Systems of categories are used in both the teaching and practice of law. There are recognised problems with this process of compartmentalisation, which are explored in detail in this paper. The author concludes that the clinical approach to legal education can play a role in challenging students perceptions of the categorisations of their substantive legal knowledge.

The teaching of law within an academic context leads inexorably towards a compartmentalisation of different areas of doctrine, hence the teaching of contract law, property law, tort etc. There has been some reaction to this artificial delimiting of subject areas, which has led to two distinct types of subject re-arrangement:

1. attempts to redefine the materials of law upon juristic themes – hence the law of remedies which straddles contract, tort and equity etc
2. attempts to redefine the materials of law upon social need/practice need themes – hence environmental law, medical law etc

One valuable role of clinical legal education is that it dissolves the boundaries between subject areas as taught on undergraduate programmes and allows students the opportunity of reclassifying their knowledge into new and temporary categories raised by client problems. It enables us to dissolve the divisions between subject areas and allows for student development of an integrated view of law.

The general problem

Academic exposition demands the use of categories

Since the schoolmen started to divide the materials they studied into chapters and verses, indexed alphabetically and prefaced by analytical contents, academic study has relied upon the categorisation of information as its basic methodology. The need to divide written material into useable pieces (as in the development of the chapter and verse system for the division of the mass of the bible in the late 12th and early 13th centuries), the need to locate material within a mass (which led to the development of the alphabetical index, which is value neutral and therefore not productive of judgmental variations in its arrangement and the placing of words), the need to make the structure of information apparent if it was to be used with facility or for comparative purposes (which led to the analytical table of contents) led to the production of the tools for information management which are familiar and indispensable to this day. This massive intellectual endeavour took place within the context of the foundation of the universities as institutions of teaching and learning (cause and effect are almost certainly in issue, but outside of the writers competence to comment upon). The importance and potential fecundity of a system of classification for ordering information and argumentation was exemplified by the career of Saint Thomas Aquinas. Certainly since the 12th century the need to categorise in order to understand and explain has been an unquestioned assumption of western educational theory.

The lawyer, particularly the common lawyer, may shift uneasily when faced with the achievements of the only learned profession to precede their own. The schoolmen paid little attention to such profane sources as the English common law produced. But the inescapable need for some system of organisation of the materials of the law led to the production of the Registers of Writs, and the English common law was seen as the sum of the actions available under the writ system. The developments of the renaissance led to an urgent need to recategorise, and English law adopted the language of the ‘forms of action’. It was in terms of the relationships between the actions that jurists explored the possibilities of legal development, assumpsit or debt was the kernel of the dispute in Slade’s case, did the availability of debt mean that assumpsit was not available? The other major demarcation was between jurisdictions, and to this day we divide the law into ‘common law’ and ‘equity’ thereby referring to a division of jurisdiction that was abolished by 1875.

Of course the categories of law are informed by other methodologies, the Roman or Civil law divisions, divisions informed by our political traditions, divisions derived from the opinions of professional bodies or informed by legal practice, the divisions imposed by such major systemisers of the 19th century as Anson or Pollock. For an approach that illustrates the ability of all of these factors to feed into an attempt to classify the law in terms of social activity consider this extract from the Bramble bush (pp10-11) by Karl Llewellyn. After separating ‘public law’ (in which he places criminal law) from ‘private law’ our author continues:

“The field of private law can be split perhaps into four grand divisions of major importance. The first is that of contracts, of agreements between people and the legal effects of such agreements. This is the branch of law that which plays primarily into what economists is know as the market, the balance wheel of a money economy, the social machine which makes possible our regime of specialisation.”

“The second grand division is the law of property, and more particularly the law of real property, of land. Here one goes into the fact behind the economist’s theory of value, the fact of scarcity; and its legal side, to wit, the monopoly of the things which are scarce. It is hardly necessary to point out that so far as the state safeguards such a monopoly and at the same time makes possible the free transfer of the things monopolised, it sets the framework within which the market, the agreement, the contract moves. And that exchange is possible only within the limitations thus set and with the advantages thus created for some men over others, and along lines and by way of the devices which law officers lay down.”

“The third great field of private law I suspect to be that of associations and the ways in which men can come together in groups to accomplish their purposes, and of the limitations as well as the powers which legal officers place upon the activities of such groups. At this point the law plays especially into the phase of economic life we know as industrialism, of capital aggregation, and the concomitants thereof, the labor organizations.”

“The fourth major field I take to be the left overs, and more particularly, the attempted general regulation of matters in the field of free play which falls outside of the field of agreement. There are contacts which cause trouble but which were not intended or agreed upon – the motor accident. There are aggressions which raise problems not only of the criminal law, but of compensation for the damage caused. There are uses of land, as for a soap factory in a residence district, which are obnoxious to the neighbourhood. There are instances of competition carried too far, which call for regulation or for compensation. A good part of this we lump together under the head of torts – of private wrongs.”

(Llewellyn’s debt to the systemisers of the 19th century is implicitly brought out in the text. His debt to the forms of action and their predecessor the register of writs is patent in his reference to ‘real property’, which is rather inexplicable given his emphasis on 20th century capitalism. One rather suspects the third category is derived from the type of professional practice we would call ‘corporate’. The debt he owes to the liberal political economists is paraded. I confess to a difficulty in identifying any obvious debt to civil law.)

Our example illustrates one or two other points. First, it is certainly easy enough to find at least three of the subject areas delineated by Llewellyn in the law schools we are familiar with; contract, land law, tort. The other category in its attention to capital aggregation is another standard course, company law, but the law that regulates trade unions and industrial disputes may not feature on some curricula. Secondly, there are elements in the classification that we would expect to be taught separately, such as environmental law, or competition law, rather than within the field of torts. Thirdly, there are aspects we would expect to be viewed as within the sphere of public law at least as much as within the sphere of private law, such as the control of land use. Finally, the attempt to explain where the material falls, ie into which category a particular dispute would fall, to use Llewellyn’s terms, is not determined by the social analysis into which the system has been cast, and the general descriptions of the material within each category also fail to delimit the category either in line with the social analysis or in line with the accepted contents of the categories. It is easier to explain the categories from a knowledge of the classic categories that underlie the piece than in terms of the analysis expressed in the piece, to risk a jurisprudent’s ‘joke’ we must attend to what legal realists do, not what they say.

Enough upon what must be accepted by all those that have considered the question. Understanding of law is accomplished through our legal categories. Teaching and exposition must utilise some means of delimiting and organising the materials of law if it is to be attempted. But so far we have identified no problem.

The categories we use are the best available

The categories in current use; contract, tort, property law (usually divided into land law and equity and trusts), criminal law, public law or constitutional law or administrative law; are the best available for several reasons.

• They are familiar to both academics and professionals. This advantage is not small or insignificant, it forms a natural restraint upon any attempt to reformulate our system of categorisation. Any ensuing advantage must outweigh the expense of explaining and winning acceptance for the new categories.

• They are enshrined in legal authorities too numerous to contemplate. It would be an incredibly arduous job to review all of our past law in terms of new categories. Legal thought suffers from an abundance of words that have to be read in the context of their legal history already. Legal texts are often unreadable (if ‘read’ implies understanding) to lay people. Even a demonstrably better system of thinking about law (such as Hohfeldian analysis) will not find ready acceptance, as it casts into doubt what little we know, and produces a Herculean task of reinterpretation for all jurists.

• There already exists a huge body of work organised around our accepted categories. This material is too valuable to discard, and too expensive to replicate.

• It would be impossible to achieve any consensus upon any new basis for the categorisation of law.

• The existing categories make sense. There are of course some problems, but there is a large measure of coherence to those categories that I feel familiar with as a teacher. It may be that ‘tort’ and ‘pubic law’ need to be subdivided upon some generally accepted basis, but this does not detract from the central point that the categories we have are fairly coherent and sensible, if not perfect.

• The categories we have form our intellectual architecture. It would be extremely difficult to think outside of them, and unless there is a pressing need there seems no compelling reason to try.

I imagine that these six points are self evident to you. Any changes must be by gradual acceptance over fairly long periods of time, there is no merit to any suggestion to recast our jurisprudence to meet anything less than an overwhelming social or legal necessity. This is not to say that new developments are to be shunned or dismissed, but it is to suggest that changes should grow from our present system rather than attempting to create a system upon a tabula rasa that does not exist.

Our present categories are causing problems

Any categorical system causes problems, because a category that is useful and convenient for one purpose will almost certainly not be appropriate for some other purpose. What is more, if material is taught and learned within a category two types of problem are automatically encountered. The student will treat the material as completely explained, and dealt with, within the category in which it is presented. There will be other categories, with their own internal logic and approach, as soon as one embraces a system of categories there is a problem of the relationship between those categories. Let us return to the Bramble bush (p11):

“I do not mean this classification to make mutually exclusive groups. The heads are convenient for description, not the framework of a logical system. Things overlap…Neither do I mean to suggest that all private law can conveniently be brought under one or another of these main heads…”

One no sooner lays down a schema than the disclaimers and explanations must follow, because students will desire, and impose, a simple and clean demarcation of their subject areas. To define, to impose a categorisation, is by implication to exclude that which does not fall within the definition. The level of distortion that an over-reliance upon categorical thinking causes can be demonstrated by considering the lease.

There is no reason not to treat a lease as a contract, which it clearly is. There is no reason not to treat a lease as an object of property, which it clearly is. There is no reason not to treat the legislation regulating leases of residential, agricultural, and commercial premises as falling within the realm of public policy, legislation which protects certain approved land use, which it clearly is. So we can safely categorise the lease as an agreement that is governed by contract, or an object of property that is governed by land law, or an area of public policy governed by public law. I need hardly add that there are criminal sanctions attached to certain actions within the context of landlord and tenant disputes, and that it is a foolhardy lawyer that ignores the potential impact of equity in the field of leases. One might mention the questions of liability that arise in tort from occupiers liability and nuisance, which naturally raise questions of procedural law in deciding how liability should be divided between landlord and tenant. Whether liability for breaches of planning law caused by the use of leasehold land should sound against the landlord or tenant raise similar issues as public nuisances actionable at the instance of the Attorney General. The powers of a trustee in bankruptcy or liquidator in respect to leases are of course of great importance, and we all know that leases have always been treated as personal property for the purposes of the administration of estates. Perhaps one should not be surprised that a legal entity with such an incongruous name as the ‘chattel real’ should present so many difficulties of classification. But that does make it a good example of a legal institution that can raise difficulties across all of our most familiar legal categories. That alone is enough to mark out the difficulties for a teacher of law, but it should not be forgotten that the categorisation adopted by a court will vitally affect the legal outcome of a case, hence in Hammersmith and Fulham LBC v Monk [1992] 1 AC 478 a lease was a contract with definite results for the parties to that action.

That should suffice to demonstrate the general proposition, but there are reasons to suppose that there are particular difficulties which we must consider with our present system of classification.

Barriers to convenient and efficient exposition

There are some that feel (myself among them) that there are better ways to arrange and present the substantive law that we teach than under the traditional headings. There are also structural problems developing within law, which are likely to push us all towards some kind of a re-evaluation of what constitutes a law degree (at undergraduate or graduate level). Suchissues can be represented by the following lists of alternative approaches:

• land law and trusts or property law
• contract and tort or obligations
• criminal law, and constitutional law and administrative law and European law or public law
• European law and everything else or European law in everything else
• human rights law and everything else or human rights law in everything else

Obviously the possibilities implied by these titles are extremely complex, and sometimes ‘or’ should be read as indicating not a simple choice of one or the other, but as a question of balance between the possibilities. The central point remains that there are real concerns over the usefulness of our traditional categories in constructing a law curriculum.

Discordance with practice

Practitioners of law have their own slightly discordant system of categories based upon the types of work units within their firm. Although some of these categories are merely instances of particular firm structures with no general application, others have a generally recognised currency. Some examples will best illustrate the point:

• personal injury litigation
• matrimonial
• commercial litigation

If we carry out a very rough and ready interpretation of these categories in terms of the sorts of legal areas they encompass in terms of the academic curriculum we obtain:

• personal injury litigation – includes elements of tort (or negligence if tort has broken down into negligence and other wrongs), welfare law (quite commonly taught as a subject at undergraduate level), road traffic law (possibly only encountered in an academic setting in its criminal aspect), heath and safety legislation (possibly encountered in an academic setting as part of public law, or as part of employment law), procedure (possibly not encountered at undergraduate level, but informing much of the LPC curriculum)

• matrimonial – includes family law (law relating to divorce, including financial orders and custody and access to children), welfare law, property law (land law predominately, although pension provision as well), procedure
• commercial litigation – includes property law (litigation arising from leases in particular), contract, tort, company law, procedure

There is no necessity for the working categories of academic law and professional practice to be coterminous. But it is desirable that the two bear some sort of relation to each other that is fairly clear. Where the professional categories are coherent it may be desirable for academic institutions to follow where the professions have led. The law relating to personal injury, for example, could probably be taught in a coherent way, thereby relieving ‘tort’ from an unbearable burden at the same time.

In any event the development of professional categories alongside the academic categories demonstrates that the familiar academic categories are not the only way to organise the material of law. The close link between the professional categories and types of client problem is an attractive aspect of their categorical system.

Desire to orientate on a new axis derived from social practice

There has been a desire within the academic community to organise teaching materials in terms of the social aim or social setting of the material. Again examples will illustrate the point. Environmental law, consumer law and commercial law are all well established categories, although they are often easiest to describe in terms of the older system. So environmental law becomes the relevant tort, European Community, public, and property law. There are also a large number of newer categories in the process of being established, such as medical law, sports law and media law. It seems to the writer that many of these new subject areas are adopting a similar approach to the organisation of the law into categories as is already used by the professions.

Desire to orientate on a new axis derived from the omissions or weaknesses of the older legal categories

Once again examples are the easiest way to illustrate the writer’s meaning. Restitution and remedial law are both aspects of the law that have been traditionally neglected, probably surfacing in the areas of contract or equity, if at all under the undergraduate curriculum.

The need for integration of student knowledge and of the law

The need to encourage students to integrate their studies has already been touched upon. It is desirable as a general educational aim, as it enable students to:

• think between categories – conflict and congruence
• understand the importance of assigning to a category
• understand legal development in late 20th Century, for example negligence and economic loss, restitution and equity

In addition, the House of Lords has been struggling to find the demarcation lines between different types of liability, for example:

• restitution and property
• negligence and liability of a stranger to a trust
• proprietary estoppel and contract
• others exist, I have no doubt, and EC integration and human rights law will make the situation far more difficult

Clinical legal education as the mode of integration

This works because the material of study is presented as a comprehensible human problem, preferably a real one, with real human interests at stake.

It is important because:

• students resist efforts to operate across categories – their shiny new understanding is threatened and they fear a total loss of structure if they do not adhere to their assumed system of categorisation. The resistance is very much lessened if the reason for the integration is self evidently valid.
• the material is not presented for its own sake but as a problem to be solved – students need answers on behalf of their clients, and the solutions to problems do not come contained within a single category nor from a single approach to problem-solving.
• the material is ‘raw’ and unsorted prior to presentation – the student has to at least perform the task of assigning the problem to a legal category. Usually self-awareness of this process can be induced.
• the material has to be sorted, analysed, and then relayed back to a non-lawyer – the legal category becomes a necessary tool in order to analyse the problem and identify the relevant law needed to proceed with the matter, but cannot become totally confining, because the client has to be referred to; it must be categorised and then returned back into problem-solving terms.
• the material is presented and dealt with within an educational and not a workplace setting – given that constraints, motivations and rules of discourse differ (ie the in-shop denigration of non-legal client needs is outside of the acceptable rules of discourse, and the client is not perceived as a source of income whose problems only justify chargeable attention) t here is less pressure to categorise in a way that assigns the problem to a type of work where it is assumed to be fully defined, ie personal injury, conveyancing, commercial litigation, divorce etc.

Vocational training has a clear tendency to replace one set of categorisations (academic) with another (internal divisions of competence, often ‘departments’). This process has the effect of limiting the amount of potentially fruitful integration demanded of a student. Thus the opportunity to encourage a self-aware appreciation of what is being done is far greater.

It also tends towards a system in which the ‘right’ or ‘appropriate’ action is taken. The definition or ‘right’ or ‘appropriate’ is made within the operating systems of the work place. It is largely a preordained response, which must be made in a reliable and consistent manner. Critical awareness is not valued in a person that has yet to achieve ‘competence’, for strong organisational reasons. Thus the experience is capable of being truly integrational. The role of the lawyer is experienced; both the power (which carries responsibility) and limitations (which are important to appreciate) of the role.

The process of classification is relatively open and subject to revision. The sole focus of the process is problem-solving, and all the resources used are directed towards that end. There is no contrary set of organisational priorities that demand formulaic solutions to be resorted to. Thus it is possible to force the students to become reflective and there is no over-riding purpose that needs to oust the rather slow and painful process of reinventing the wheel. Students can become aware of the self evident fact that the purpose of the legal edifice must be to provide a useful but limited tool for the solution of people’s problems.

Conclusion

It has been argued:

• We do have a system of categories which we use to understand and teach law.
• Some such system is necessary.
• There are problems inherent in any such system.
• The problems with our present system are present, likely to get worse, and have been recognised by many different people in different ways.
• There have been a range of responses to such problems.
• Academic autonomy makes a single imposed solution unthinkable.
• Clinical legal education as practised at Sheffield Hallam University presents a non-doctrinal and effective way of delivering a legal education that addresses the problems imposed by our system of classification.

Postscript

This paper is based upon the practice of the Law Clinic at Sheffield Hallam University. It is not meant to suggest that this is the only model the argument is applicable to, nor that the Law Clinic is anything other than one way in which the clinical method can be used within the academic curriculum. It is simply the case that the author’s experience of clinical teaching has been acquired at Sheffield Hallam.

The paper owes its existence to my predecessor and colleagues at Sheffield Hallam University and the discussions at the 1998 meeting of the
Clinical Legal Education Organisation (CLEO) at the University of Derby. My thanks and apologies to these people. It must be said that clinical legal education can serve many other ends within legal education, and this paper has its focus because of my own teaching and research experience. It may have been observed that there is a sole citation of another’s work, and that was chosen so that I may quote another in justification:

“Cititis was a disease abroad in the land. Victims of this mental disorder hold the delusion that nothing is, except in print; and that even what is in print is taboo to use unless some print is cited. I have been fighting Cititis, especially in law reviews, now for many years. (The cure is to ask: Where did Aristotle get his stuff from?) I shall not here contribute to its spread.”

For this paper I have drawn upon the writings of others, conversations with colleagues, my experience of teaching, debates upon course structure within institutions, the self-evident difficulties the appellate courts have experienced in reconciling and delimiting different types of liability and the terrifying realisation, repeated over time, that there are some questions students ask that are intelligent, simple, and unanswerable. My debts are innumerable, my memory fallible, and my time is done.

Last Modified: 12 July 2010