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Ané Pienaar
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The problem with legal education in South Africa

06 June 2014, 11:29

Recently, there has been increased discussion about the quality of legal education in South Africa. The general consensus is that students leaving university are not prepared for the profession. Candidate attorneys and directors alike agree; during your articles, you learn everything from scratch. So what is the point of even going to university? Why spend hundreds of thousands on an education that leaves you without any skills at all?

Wits University’s answer is to do away with the four year LLB programme and require that students first complete a BA or BCom degree, arguing that the problem is that law students are not exposed to a broad enough scope of knowledge, but even those students seem to struggle. For some reason, all the emphasis is placed on what is being taught but nobody considers the possibility that the problem is how we are being taught. The belief is that if you aren’t getting A’s, you have no idea what you are doing. But here we stand saying that not even the ‘A’ students know what they are doing. It is worthwhile to contemplate what skills traditional examinations are really teaching. They do not teach you to think, they do not teach you to analyse, what they teach you is to memorise a textbook of facts and to regurgitate it all onto paper after which the facts disappear from your memory anyway. In some courses, they do give you what they call “take-home exams”. It takes the same basic form of an assignment but gives you a weekend to answer questions that are substantially more challenging than exam questions. These papers require research, that you from an opinion and write convincingly; they require you to think.

It seems inconceivable to people that testing in this way could be at all valuable but getting your learner’s licence, does not mean you can drive. To get your learner’s licence, you learn the rules of the road and the theory of how to steer a car. With a few exceptions, if you put that learner in a car, they will generally start the car, put it into gear and then manage to let it die or drive it into a wall. Knowing the theory of how to drive is not enough, you need to practice before attempting to get you driver’s licence; many people have to try more than once before succeeding because it does not come naturally to everyone. University is where you learn to drive a car. You may remember the case names and theoretical concepts but when you are asked to really use them, you are stumped. John W. Gardner noted, Much education today is monumentally ineffective. All too often we are giving young people cut flowers when we should be teaching them to grow their own plants.

Tests and examinations are biased towards students who have the ability to sit still and study for hours on end and remember every detail. But not every student is like that; some students have ADHD and can’t sit concentrate for more than 15 minutes, no matter how much you drug them. Those students do not get A’s. Those students are the ones who are overlooked when applying for articles because obviously, they are incompetent. What is so unfortunate is that many of these students are incredibly bright and more than capable. Often a conversation with one of them is far more enlightening and valuable than conversation with a straight-A student who can recite the entire Constitution but has no opinion on it. Taking a practical approach to testing, levels the playing field; everyone has access to the same information but how they manage to use it will be vastly different. These exams are not easy; some students still fail them. If they were easy, everyone would get 100% which I assure you, they don’t.

No studies have been conducted on this -and I sincerely hope that happens- but I have a feeling that even with the four year LLB programme, students leaving university with that kind of testing will be wildly different from the ones leaving now. Perhaps they may even leave without having every ounce of passion drained from them. The legal profession is not about memorising the entire law; that is factually impossible. Of course there are things that you have to remember but like learning to drive a car, these things stick with time and practice. What is really difficult is teaching your candidate attorney basic research and writing skills. What is difficult is having to provide an opinion and solve a problem after years of neglecting those skills. Yes, the legal professionals before us went through the standard system and are excellent attorneys and advocates, but why is it that everything in the world develops while education remains static? Why is memorising something that can be looked up on the internet in less than a minute valued above developing analytical and writing skills? I leave you with another quote: “Knowing how to think empowers you far beyond those who know only what to think.” 
? Neil deGrasse Tyson

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