Christopher Columbus Langdell, Dean of Harvard Law School from 1870 to 1895, introduced the case study method; it was a deviation from the orthodox standards of teaching which the world of legal academia was not prepared for. Immensely criticized initially by some of the big names of the era it was a deviation and revamp of what we call orthodox teaching method. But it became a disruption that further paved the way for greater research and a teaching method that created many eminent lawyers and even Presidents for the United States of America. The academic world and specifically professional courses like law also reel under a need for change and revamp and one of the most important areas which require the same is examinations and the mode in which they are conducted.
Examination, as the word suggests, in the literal sense means a detailed inspection or study. The second meaning is a formal test of a person’s knowledge or proficiency in a subject or skill. If we take the first meaning seriously it requires a detailed inspection of the examinee and not just a racecourse fight to finish a set of hurdles to be dealt at the end of which you are judged by a score. The detailing required to score depends upon the whims of an examiner upon what he/she treats as essential to the course. There are no hard and fast rules about a definite answer too, this costs dearly to the student as much as to the profession. Specifically, if the discipline is a professional course like Law. While the second meaning of the word emphasizes the test of knowledge and proficiency in the subject or skill. It is quite critical to observe how one exam pattern can test/examine the same in a discipline like Law where the subjects are divided into substantive and procedural laws. The need for revamping hence becomes imperative and a factor important to consider for legal academia.
The era of pandemic brought forth several issues regarding the education, and delivery system. It survived using the internet as a tool but then the most contested issue by the academic world was the issue relating to the conduct of examinations of students. The only tool which probably the policymakers had in their mind was to use the same modus operandi through which the classes were conducted using the Internet and camera as vigilance tools. But then the effort of vigilance is something which has to be seen with a scanner and a pinch of salt, where the exam fails to test the proficiency and skill but rather tests how much can a student rot learn and memorise a few sections, articles, facts, case laws , etc.
No doubt a strong memory is an asset for a lawyer, but proficiency can’t be tested alone on the basis of a good memory. The examination must be conducted to test the most important skill sets of a law student which are Language Comprehension skills, Critical reasoning skills, Research Orientation, Ability to understand facts and Communication skills (including oral, and written with professional finesse). Sadly, the examination system at law schools, except where open book tests or 24-hour tests are carried out fails to examine this and hence a lacuna exists.
Law education is a professional course. Just like medical sciences where the student has to be competent professionally more than in another course. The classes he attends, the research he does, the internships he undertakes, the projects he participates in, the moot court representations, and the exams he appears in during the years of graduation, all hold value once he graduates.
Post the launch of the 5-year course, the architects of the course were particular about removing the lacunae and making sure that the 5-year course covers practical aspects much more than the 3-year program through internships, etc, but yet out of this set system the most debatable aspect was retained, or you can call it as something which exists in the education system you follow in the country, the examination pattern. Traditional universities follow a rather easy way out in the form of sample question banks and also solutions that are printed and sold at stationery shops. Some publications come out with model answers to these questions and students are sure that nothing outside the publication will be asked in the examination. They rot learn the answers and score. Out of such an exercise, the ones who score the desired topper percentage of 90 per cent and above would be less than 10 per cent of total takers. The examiner’s logic behind checking these and evaluation though can be challenged through a revaluation etc., but then what value it adds to the professional skills of students is a questionable debate
A quick assessment of graduates of such traditional universities as DU, GLC Mumbai etc. and those who practiced before the bar would give us an answer that most of the well-established lawyers out of them never really scored well during their law school life. Rather they were the ones who spent their time interning with advocates gaining professional knowledge that the law school system should have had even as an assessment system. In the 5-year program, this was included via internships but the exam system remains rather the same, the guides getting often substituted by class notes and what the faculty interprets from the written word of law, how a judge could have pronounced as a judgement or a jurist would have pushed hard as his theoretical.
Most of these are memorized or rot learned and then comes the biggest hurdle of them, the time limit. In a 2-3 hour, the candidate must write about a question that requires him to expedite his memory cells into remembering all that he read a night before from his notes or the class he attended since last few months and articulate them handwritten on a paper. Seriously what is getting tested here has nothing to do with the profession he is going to join. If it’s about remembering the right answer to a question at the right time, most lawyers get to the stage when they practice the said law in their area of expertise and remember the same in the due course, if it’s about finding the right answer to the question, most lawyers use the research and library resources to do the same for which there is an internal assessment in form of Assignment submissions and project presentations. The timing also makes no sense as in every Court, or where a legal query needs redressal the time taken for research only makes the solution more authentic and powerful which most lawyers invest in. Last but not least. The handwritten submissions might be the meekest anomaly to be quoted but most of the plaints and submissions today are more made in typed format and not written. So what are we really trying to prove with an examination system which is age-old and has not evolved and living up to the professional demands.
The solution to this lies with Open book/24-hour tests and more practical, thematic tests that add to the graduation of the student from one level to another. These tests should rather compel the student to focus more on developing the critical reasoning skills which are more important to the profession. Subjects like Constitutional law should have questions that cultivate theoretical and jurisprudential abilities with Questions where a recent Judgement on Homosexual rights is critically evaluated in the light of not just law but also in terms of its jurisprudential theory and of the same in terms of other laws.
Substantive laws like Indian Penal Code etc. should have research-oriented questions where the questions should compel the student to carry out interdisciplinary study with criminology, victimology, Justice studies etc. within stipulated 24-48 hours to find the reason for the origin of crime, reasons of men’s rea and ways to make sure justice is expedited and delivered transparently. Some of these exams should begin with the thematic research to be done by students and finally making sure the University they are a part of archives it and also makes it accessible to the public at large. A Paper in IPR that seeks students to file or endeavor to get patent, copyright, Geographical indication or traditional knowledge certification to products they find which deserve the same as academic research work under the tutelage of the Professors who teach these.
For Procedural laws like Civil and criminal procedure codes, the examinee should be made to make plaints and SLPs with drafting language to be emphasized upon. Tests should begin right at the start of the semester with the student assisting a lawyer from State Free legal aid clinic and carrying out the procedural formalities and learning the skills and maintain a self-assessment copy. The same should be checked and marked by Judges of the court who indeed are a part of the legal education domain by the virtue of being a part of the Bar Council of India, a body constituted to look into the quality of legal education
A test shall only be used to grade students based upon one’s memory can never do any kind of good to anyone, let alone a student who probably is trying to create a career in law. A more practical approach towards the same is what is the need of the hour this will not just help the students who are already in the law school but the kind of testing which we do shall also encourage a lot of other students to realize what legal education is all about. Today if you ask a student about what is legal education or how the law is taught? Most of them don’t have a clue. A medical student has a good understanding when he takes up medicine as a profession that surgery and a host of other activities during the course is something he or she will not be able to avoid and has to mentally be prepared to do the same. But on the other hand, if you ask a last student most of them say that it’s more upon memorizing articles and sections from the big thick textbooks of law and this stems from the very fact that the examination system in law schools is outdated and requires a very quick updation. For most first-year law students, the moment they land up in a District Court is often aghast at the site which they witness. It’s because not just that the environment is not what they had in their imagination, because what they saw in the movies is not what exists in real life but what hurts them more is the kind of filing the kind of procedural things that they witnessed there dig August similarly when a student goes to a High Court and when he sees the procedure in practice and when he sees that how a proper filing is done it takes the student a lot of time to digest and also come into terms of how long in real life is practiced. Similarly, when a lot of things that are written in books are also something which they witness in real life is something which is different. It takes a toll on what they have planned and hence we witness a lot of law students also dropping out of law schools in between and some of them after graduation finally give up and choosing some other profession that is not at all connected to law. One of the best ways to introduce to them the various nuances of the profession it’s by the practical way of conducting examinations and also making it very clear to them the expectations of the profession once they graduate. Universities and Institutions should take note of the same and encourage the faculties who in this case are the most instrumental in designing and creating the question paper which makes this possible. The faculty who teaches the subject knows the subject and his students best. The faculty also knows that practically what is expected from the industry relating to the specific course.
So, when the student appears for the examination, he has an idea about the expectations of the industry and that he is not coming to the examination hall after memorizing a guide or else a note which has been formally discussed in the class. But brings to the examination hall his ideas and his ability to decipher from the legal system what may just add to the society in form of his articulation and reasoning skills. At the end of it, academic independence given to the faculty should be utilized to seek innovative measures of equitable testing of students for professional finesse and expertise rather than just make them hunters for grades and marks which slowly the new education policy of India is also rubbing off as a criteria.
Gerontocracy probably is the root cause where people who have followed the system and got comfortable with the same during their time think the system suits the present generation too. The objective of examinations should be to give the students clarity about the professional impact they would generate once they graduate, provide a realistic picture of the professional demands of the industry. The country might not have had Mohandas Karamchand Gandhi question the British legal system and seek equal rights for the citizens of the country unless he was not practically exposed to the apartheid in South Africa and how it felt to be a lawyer and see illegal action. An examination should put you to test what you have read and what you have to practice and probably lead or earn out of it is the need of the hour, rather than one which puts a digit before your name on the scale of how much you remember out of a syllabus divided into days and months.
The writer is the Associate Dean and Associate Professor at IFIM Law School, Bengaluru. Views expressed are personal.