| Special Workshop Title: | Law Scholarship and Law Teaching: Technical or Theoretical? |
| Author: | Yasutomo Morigiwa , Nagoya University Graduate School of Law, Japan |
| Paper Title: | The Element of Legal Theory in the Teaching of Professional Responsibility |
| Abstract: | I claim that a general
theory of law that includes, among others, a theory of the sources and
interpretation of law, as well as a theory of the function of the
judiciary within a liberal democracy, is necessary for effective and
articulate instruction of professional responsibility of the legal
profession. I shall draft a thesis on the major roles such a theory
plays in legal education, especially in subjects heavily involved in
the actual practice of law, e.g., professional responsibility or
legal ethics. The purported upshot is the elucidation not only of what
good legal education consists in, but also what legal theory must be
capable of, in order to hold heuristic power and epistemic interest in
both the epistemological and the practical spheres.
I capture both legal theory and legal education in a dynamic mode; forever changing to address the intellectual and societal needs of society. E.g., the system in Japan is going to change from that of the continental system to a hybrid between the continental and the American. The greater part of the training of the legal profession will become the duty of the university, the process for which will be extended from undergraduate legal studies to that which includes a course in a graduate school not unlike the American law school layered on top of it. I hope to show how policy and principles involved in the organization of legal education inevitably refers to a system of political morality that when challenged ought to be defended by arguments that include a philosophical theory of law and society. Perhaps a short comparison of the legal systems of Asia, Europe and America would be elucidatory in this context, as well as in the more practical aspects of legal and educational reform in which many countries are now involved. I would also stress the difference between the civil law tradition and that of the common law; even to the extent that I would assert that the functions of grand theory are different in the two traditions just as, or because, the conceptions of law are different in the two traditions. A discussion of what makes legal theory interesting, based on empirical comparison of how professional responsibility is taught in the different legal cultures or traditions ought to make explicit those sub-theories of legal theory, if any, that are essential. It is my claim in this presentation that those subsets of a legal theory make for the training of competent lawyers as well as sound public philosophy. |
This page was last updated on: 2003-05-04.