Introduction

The recent decision by the University of the Witwatersrand (WITS) to cancel, as of the end of 2014, the 4-year undergraduate law degree (the LLB) has resulted in significant debate as to the merits of the decision. The decision, which I believe to be an admirable one, is something that will have a fundamental impact on legal education, specifically, and the legal profession, generally. This is especially the case if other Law Schools follow suit, as I believe they should.

In deciding to drop the 4-year LLB, WITS has highlighted problems which affect its law school, and higher education generally, in an acute way the demands rigorous engagement. If a broad coalition of like-minded people cannot engage seriously over the problems facing WITS, and other universities, South Africa would be failing the many young people who rightly see education as a means to escape undesirable socio-economic circumstances.

Quality

Many suggest that the quality of the current graduates is poor by comparison to those produced previously. Previously, the LLB was taken as a post-graduate degree after obtaining a first, generalist, degree.

Today, graduate numbers are up and more lawyers than ever are being produced. Some suggest this is the problem: universities mass-produce graduates and the quality accordingly suffers. Although, I agree with this assertion I am mindful that is not always the case. Further, my hesitancy is also borne of the fact that no significant body of quantitative data examining the ‘quality' of LLB holders over time even exists.

However, there exists is a significant question mark over the quality of South African high school education. While the Department of Basic Education (DoBE) pats itself on the back to celebrate good results - supposedly, children's hard work being indicative of a successful department - others are not so eager. Africacheck, Jonathan Jansen, the OECD, the World Economic Forum, among others, have all highlighted the poor quality of South Africa's primary and secondary schooling. This is relevant to the extent that academically poorer matriculants allowed to enter the university system are more likely to produce academically poorer graduates. Even if this is through no fault of their own they are already prejudiced by it; the system compounds poor education.

The education system, then, is a brutal sifter rather than a generous enabler: in a failing system, it would seem that, only those who are gifted/well-supported/wealthy can proceed to higher education. And again, only those who are gifted/well-supported/wealthy, from within this already winnowed sub-set, can graduate. If these ‘select' graduates are the ones entering the profession and are considered to be poorly educated, then it is clear that we face a serious systemic challenge. Even though Universities are trying to be more selective, their ability to do so is limited.  Universities, too, must concern themselves with the bottom line.

The 4-year undergraduate LLB being dropped, thus, serves as indictment of the entire education system. Dropping the LLB is symptomatic treatment, not addressing the root cause of the problem.  Even if Universities were in the business of attempting to undo the ‘damage' of primary and secondary schooling, the limited time which they would have to do so is short. WITS and other universities are powerless to address the real problem. Regrettably, WITS' effort to protect itself, and the degree, again hurts students who must suffer and now be doubly-damned.

Transformation

The lack of transformation plagues many professions, including the law, for obvious reasons. The 4 year LLB was, in part, introduced to speed up transformation by reducing the costly number of years it took to qualify. Affordability is important because black households have less to spend in general and on higher education in particular. Reducing the number of years then should make the degree more attractive to those previously disadvantaged under Apartheid. Additionally, it also meant that government support could be extended to more students given the shorter period of time for which they would need to study.

WITS' decision seemingly flies in the face of transformation. It is regressive in the sense that, on the face of it, it makes obtaining an LLB more expensive - and thus disbarring the black child from gaining an LLB.

Interestingly, despite the shorter degree being a quicker way to transform, the profession remains largely skewed in terms of its demographic representivity. The profession remains largely white and male. That may be the case for other reasons - the prohibitively expensive pupillage system, institutional (race) biases of large firms, collusive briefing patterns, low retention rates and so on. Although the Legal Practice Act purports to address these problems it, regrettably, does not.

But, the state of the profession is also illustrative of the degree's lack of success at achieving transformation. The weakness of the public education system, upon which most black pupils are dependent, only makes matters worse. Black pupils, generally, are set up for failure because the system ill-equips them to read for the degree. That is systemic and has little to do with the personal traits of the student. It is not that black students do not have the potential to learn; it is in spite of their potential that the system ill-prepares them. Apart from the fact that the degree is being taught in a non-mother-tongue language, students are also competing against non-black colleagues who do not, by and large, face the same problems. Black students, then, rarely make it to qualify with the LLB degree - let alone make it into the profession - because their weak government education means that they are culled from the programme much earlier. Transformation, in the status quo, is a pipe dream. Many black pupils, of course, are an exception to this: but that they are an exception rather than the norm proves the point rather than detract from it.

Universality

Another question which needs addressing in South Africa is whether university education is, in fact, for everyone. Given the history of South Africa it makes sense that, in order to create redress and reverse generational underdevelopment, higher education is a much-prized and much-touted option.

But the reality is that university education should be an elite entitlement. By pressurising droves of students to go to university and by structuring the education system that sees university as its end point, students grow up with contemplation of little else. However, given the overall weakness of the schooling system and lower standards to qualify for entry to university, it should come as no surprise that drop-out rates are as high as they are. This is the case not only among students who drop-out entirely but also among those who initially get accepted for more difficult degrees but then switch-out to ‘easier' options.

All of this speaks to whether South Africa's emphasis on higher education is correct. Considering that economically successful countries, like Germany, have strong systems in place that allow education and development in all sectors of the economy, not just those dependent on higher education, means that this is a debate worth having. That LLB, and other degree, offers may be reduced suggests that our institutions of learning are making this decision anyway. By making the LLB degree postgraduate only suggests that WITS may support generalist undergraduate education for the many but specialisation for the few.

That does not mean ‘elite education' is anti-poor. It is wholly unacceptable that students should be denied the opportunity to study further due to funding. If students are academically capable then they should be given as much private and/or government support as possible. But this conundrum is made worse by the fact that education in South Africa is not yet on an equal footing and so making such an assessment as to who is capable, in practice, is not that easy. This may fall away though if we put our schooling system right.

Responsibility

Some pedagogical debate also needs to be had about who bears responsibility for professional training. While this is particular to the legal profession, it is not difficult to imagine that other organised professions experience a similar problem. That is: what kind of training should a (LLB) gradate have when they enter the field? Should they be perfectly capable of starting immediately or should they be functional - in theory - but in need of practical training that can only be gotten on the job?

It is surely incorrect to suggest that LLB graduates should be fully able to enter the field and, on day one, practise without any issue whatsoever. That is why we have pupillage and clerkship in place - they are there to teach practical aspects. The role of the degree, then, is to teach students the body of applicable knowledge so that they can begin practising.

If an assessment is being carried out of LLB graduates when they are newly admitted practitioners, we must be careful to understand whether this is of their theoretical knowledge (i.e. the degree) or their ability to practise. A problem in the former is the responsibility of the university but it is questionable whether a problem with the latter is too - that may the purview of the organised profession itself.

By making the degree a postgraduate one, WITS goes some way to addressing the need for balance between theory and practice. Much like the professional law degree in the United States, the degree should become more demanding in its focus on theory and simultaneously increase its focus on practice, thus producing a better graduate overall. The South African legal profession could do well to better allocate responsibility for the training of young lawyers.

Reasons

Beyond this ‘grand narrative' however, there exists compelling reasons to make the LLB a postgraduate degree.

Manageability and Quality

The fact is that many students take the 4-year LLB over five years, or longer, due to the high failure rate. Apart from learning and capacity issues, the intensity of the degree in four years also seems to be a cause of many problems. Spreading the degree over five years, then, means that the degree should be more manageable. The fact that students gain two degrees for the time it may take them to complete one is also a bonus.

But, splitting the degree into two phases also means that more stringent testing can be done before a student progresses to the LLB. This would ensure that successful candidates are more likely to graduate. The postgraduate nature of the degree means that admissions can legitimately be more selective. Postgraduate classes are also smaller meaning that class size and lecturer-to-student ratios are better. Individualised attention is more likely. This also means that the competition to get into law school is tougher and, accordingly, the quality of student entering and qualifying with the LLB should rise too. All of this has a bearing on the quality of the graduate produced and the practitioner they will become.

Some also suggest that a year longer in university allows for greater emotional development, and maturity, among new practitioners. That remains a contestable assertion. Generally, I can appreciate that age is a signifier of experience (and maturity) but would be hesitant to determine policy based on anecdotal, ageist, evidence.

Specialisation

It can also be argued that the 4 year LLB is a glorified junior degree and that it ill-prepares practitioners. Too much is packed into too short a space of time. There is lack of deep understanding of the law. This is problematic in two senses.

The LLB holder is considered a specialist in law. After all, they have read for and obtained a specialist degree. But, in truth, they are not specialists at all. At best, the LLB is a broad generalist degree that rushes through every aspect of the law; and, at worst, it is nothing other than a shopping list of credits that students have attained. And to make matters worse, LLB holders have very little formal training in anything else. The additional non-legal subjects they may be compelled to take are either irrelevant to the degree or are relevant but are taken for so short a period of time that they are merely learnt at an introductory level.

The implication of this, generally, is that the LLB holder has a unipolar view of the world. The lack of depth in other academic disciplines which hurts the individual and the profession: their knowledge is limited. The subject combinations that a student could take if made to read for a generalist degree first are endless. Not only does it mean that the student has the ability to specialise in another field but that they can also specialise in a related field that will enhance their legal education. If a student wants to specialise in financial law a BCom LLB, so too is a BA LLB if they want to pursue public law or criminal law, for example. Their education and career prospects both improve because of multi-disciplinary expertise.

But this also means that prospective LLB students have alternative career paths. Many students discover that their original impressions of their degree choice starkly differ once they have embarked upon it. This kind of reform would allow them a certain safety net as they pursue their education in a meaningful way. This is particularly important as transferring out of an undergraduate LLB, at an advanced stage, is prohibitively difficult. And even one can do so, the student still risks spending more time and money in order to obtain another degree. In an over-concentrated field like the law, this is also a useful mechanism to ensure that students can pursue alternative career paths where a legal career is not an option.

Conclusion

WITS' decision is a momentous one and I am hopeful that other Law Schools will follow suit. The legal profession, and society more generally, stands to benefit from an open and honest debate about how best we educate the future lawyers of South Africa. Given the importance of the Constitution and the law to the sanctity of the nation state it is better that we do this sooner rather than later, especially if such debate can lead to better education for all.

Updated July 26 2014

Kameel Premhid holds both a BA and an LLB from UKZN. Contrary to popular belief he did apply for, and was accepted to read for, a 4-year LLB at UKZN but chose to do things differently. He is presently reading for an MPhil in International Relations at Lady Margaret Hal, Oxford, as a KZN Rhodes Scholar (2013). He is a Research Fellow of the Helen Suzman Foundation and writes in his personal capacity.

Click here to sign up to receive our free daily headline email newsletter